It's a race against time for the opposition parties in Parliament as the Western Cape High Court reserved judgment on whether Parliament should debate the motion of no confidence in President Jacob Zuma that was tabled by opposition parties two weeks ago.
On Tuesday, Judge Dennis Davis said he would most likely deliver judgment on Thursday morning. Thursday is significant because Parliament will rise on that day. Opposition parties wanted the motion to be debated on or before Thursday.
Surprisingly, the court heard that Parliament had scheduled on its programme for Wednesday a debate to decide whether the motion of no confidence should be debated.
This is despite Parliament issuing a statement on Thursday stating that because the National Assembly's programme committee was unable to reach consensus on the programming of a motion of no confidence in Zuma, the motion could not be programmed.
"Following extensive deliberations where all parties expressed and argued for their positions in relation to the motion, it became clear that the two positions – to schedule or not to schedule the motion – were irreconcilable," the statement said.
The previous day, the ANC had also rejected a debate on the motion, saying the motion was frivolous.
In a statement, ANC chief whip Mathole Motshekga said the ANC caucus had unanimously decided to oppose the programming of this motion on the order paper of the National Assembly.
He added: "If the people of South Africa, the majority of whom overwhelmingly mandate this president and the African National Congress to lead this country, were to learn that this august institution has entertained a motion of no confidence in the president on the basis of such frivolous allegations, their trust in the ANC and this Parliament would have been violated."
Motshekga wrote, "It is a cause for grave concern that this institution should be abused with a flurry of frivolous motions, which are motivated by nothing other than a desire for cheap publicity.
"It would be a complete travesty and an unsustainable precedent if we were to allow a frivolous motion, which is based solely on spurious allegations rather than facts, to be afforded the dignity of consideration and debate by Parliament."
Following the court adjournment on Tuesday, Motshekga dramatically changed his tune.
He told the Mail & Guardian that the ANC caucus didn’t reject the motion, but supported a view that its timing was wrong.
"The caucus never took a decision that we will never allow a motion of no confidence. That is provided for in the Constitution [and] we can't stop the operation of the Constitution. But there are processes that must be followed to decide when to schedule [it].
"It's a question of timing, it's not a question of blocking. How can we block the Constitution?" asked Motshekga.
Advocate Anton Katz, on behalf of DA parliamentary leader Lindiwe Mazibuko who filed the urgent application on behalf of the opposition parties, asked the court "to intervene to protect the Constitution".
Katz argued that the section 102 power is up there with the most powerful powers that the Constitution contemplated.
Katz said the debate of the motion needs to take precedence over other matters before Parliament and the motion should be debated before or by Thursday or else it falls off the Parliament programme. "It rings hollow the constitutional promise of the voices of the voiceless being heard."
He said between November 8, when the motion was tabled and November 22 when Parliament rises, there has been sufficient time to put the debate on the programme. "There's no suggestion that it may have destroyed Parliament programme," said Katz.
Advocate Jan Heunis, on behalf of National Assembly speaker Max Sisulu, argued that the opposition parties' decision to take the matter to the courts was premature. He said they had not exhausted all the internal remedies.
Heunis argued according to the National Assembly rules, the speaker doesn't have the power to decide on whether a motion should be debated or not. "If the programme committee fails to reach a consensus, the National Assembly itself has to make a decision," he said.
But Davis was skeptical, saying, "If the majority [in the National Assembly] says no, wouldn't that be a majority denying a minority right to be heard?"
Heunis argued that it is only then, that the opposition parties could approach the courts.
The court agreed that there was a lacuna, as the rules don't provide for how a motion should be tabled, when there is no consensus in the programme committee.
Davis also lashed out at politicians for rushing to courts to decide on difficult political matters, adding that it was ridiculous to put so much pressure on judges on something so important.
"Can the courts start saying to Parliament, sorry you have to rearrange your schedule. The case has enormous implications.
"Courts are increasing getting drawn into difficult issues.
"How do I tell the speaker and the chief whip that as a judge, I think your priorities were wrong?"
He reserved his judgment for Thursday morning.