Irregular constitutional change?

Possible irregularities in the passage of legislation to eliminate cross-boundary municipalities are being investigated by the Public Protector.

On May 8 the Cape Town office of the Public Protector handed a letter to the Speaker of Parliament, Baleka Mbete, asking her to explain how the 12th amendment to the Constitution was passed despite confusion over the recording of votes that took it past the required two-thirds majority.

The amendment is designed to facilitate the elimination of cross-boundary municipalities, including Merafong, where protests by Khutsong residents against incorporation into the North West have turned violent—as with Moutse in Mpumalanga and Matatiele-Maluti, where local communities are resisting the decision to incorporate them into the Eastern Cape.

The Constitutional Court has reserved judgement in a challenge to the laws brought by affected communities, who claim they were not adequately informed or consulted.

But procedural questions appear to hang over the parliamentary process underpinning the 12th amendment.

For a constitutional amendment to be passed it must win a two-thirds majority, or 267 votes, in the National Assembly before going to the National Council of Provinces (NCOP) for approval. It then goes to the president for endorsement.

On November 15 last year, following a vote in the National Assembly, Deputy Speaker Gwen Mahlangu-Nkabinde informed the assembled house that “Ayes [yes votes] were 266” in favour—or one vote short of the required number.

Next she announced from the chair that “In terms of Section 53 (2) (b) of the Constitution, I, as presiding officer, have a deliberative vote.
I cast my vote in favour of the question. Bill accordingly agreed to.”

But a copy of the computerised voting tally, known as the voting summary, shows only 265 votes in favour. It was later altered and the name of Louisa Mabe, an ANC MP, was added, apparently in breach of parliamentary guidelines.

The vote was inserted without the National Assembly or the deputy speaker being notified, and was not accompanied by the signature of one of the ANC whips.

The Parliamentary Handbook—which sets out guidelines, but not mandatory procedures—makes provision for votes to be recorded in the event of the electronic system failing. “Whips are entitled to scrutinise the print-out and to make minor adjustments or corrections. Any such changes must be signed by the whip in question.”

The procedure was apparently not followed.

There was also a series of points of order after the deputy speaker announced that the Bill was passed. The first was from the chief whip of the Inkatha Freedom Party, Jacobus van der Merwe: “Madame Speaker, you never told us how many members voted No.”

Mhlangu then repeated that there had been 266 votes in favour, with 65 against and no abstentions.

The IFP’s Ruth Rabinowitz then protested that she had had her foot in the door of the assembly chamber, but had been excluded. “We need the whole Rabinowitz,” Mhlangu replied, to general mirth.

There was no further discussion.

At this point the deputy speaker could have called a recount according to Rule 92, which states that “in the event of confusion or an error concerning a division, another division shall take place, unless the numbers can be corrected otherwise”. She did not.

To compound the confusion, the official parliamentary record of the debate and ensuing vote, the Minutes of Proceedings of the National Assembly and Hansard, listed the vote as “Ayes 266”, but a manual count of the names gives a total of 267, with both Mabe and Mahlangu-Nkabinde’s names among those in favour.

Given the ANC’s 293-seat majority in Parliament it should easily have mustered enough votes to pass the amendment without any procedural problems. Both Democratic Alliance chief whip Douglas Gibson and secretary to the National Assembly Kaspar Hahndiek dismissed the issue as a technicality. The speaker’s word was authoritative, Hahndiek said.

He conceded, however, that it was the first time such a result had been recorded in this way and that the “result was inferred and not specifically stated as 267” and it would have been “better [and] an improvement” had the correct figure been mentioned.

Representatives of the affected communities felt more strongly.

Alastair Dickson, the Pietermaritz-burg advocate representing the Matatiele-Maluti Mass Action Organising Committee at the Constitutional Court, said: “The applicant brought the matter on the understanding that the 12th amendment was passed regularly by the National Assembly. Had I known that there was uncertainty surrounding the voting procedure I would have made it a cornerstone of my argument.”

Clive Rubin lodged the complaint with the Public Protector

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