This after the court heard submissions on Thursday about the foiled attempt by opposition parties in Parliament to push through a motion of no confidence debate about President Jacob Zuma in November last year.
Many of the judges appeared exasperated by the lacuna (gap) in the presentations by legal counsel for all the interested parties – who were attempting to, during submissions, locate the lacuna in the National Assembly’s Rules if there is a deadlock about tabling a motion of no confidence.
The matter goes back to November last year when opposition parties had attempted to table a vote of no confidence debate in Parliament. It's programming committee blocked the move, which House speaker Max Sisulu chairs. With the ANC against scheduling the debate before Parliament closed for the year in November, and opposition parties for the move, the programming committee was deadlocked.
The ANC at the time had suggested that this was a politically motivated strategic move to discredit Zuma before the ANC’s national elective conference in December last year.
Democratic Alliance (DA) parliamentary leader Lindiwe Mazibuko had, on behalf of eight opposition parties, then sought urgent relief from the Western Cape High Court and that it rule the matter be heard on or before November 22. The opposition parties had contended that Sisulu had deadlock breaking powers, as this was the sort of “unforeseen eventuality” contemplated by the National Assembly rule two.
However, Judge Denis Davis dismissed the DA’s application, finding that the speaker was not empowered by the rules of the National Assembly to take whatever steps necessary for a motion of no confidence to be debated.
He also found that the high court could not decide on whether Parliament had failed to fulfill a constitutional obligation – as section 167(4)(e) of the Constitution provided that this was the prerogative of the Constitutional Court.
Davis was also withering in his assessment of being asked to adjudicate the matter, especially on such an urgent basis by the opposition parties, that had also included the IFP and Cope, and raised concerns about the “politicisation of the judiciary”.
Wrote Davis: “Where the constitutional boundaries are breached or transgressed, courts have a clear and express role. And must then act without fear or favour. There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication.
“In the context of this dispute, judges cannot be expected to dictate to Parliament when and how they should arrange its precise order of business. What courts can do, however, is to say to Parliament: you must operate within a constitutionally compatible framework; you must give content to section 102 of the Constitution; you cannot subvert this expressly formulated idea of a motion of no confidence. However, how you allow that right to be vindicated, is for you to do, not for the courts to so determine.”
The ANC had since, also offered to debate the matter on February 26 this year and Sisulu recently instructed Parliament's rules committee to investigate and solve the gap in the rules when situations arose of a deadlock within the programming committee over motions of no confidence.
Nevertheless, hello Constitutional Hill.
Representing the DA, advocate Anton Katz argued that programming committee’s role was of “facilitating what must be debated” in Parliament, and not to debate the merits of that motion. He reiterated that the speaker was, according to the National Assembly’s rule two, empowered, and “constitutionally required” to break a deadlock in this regard as it was an “unforeseen eventuality”.
“The proof is in the pudding – the rules have allowed what to happen to happen,” said Katz.
Advocate Jan Heunis, acting for Sisulu, pointed out that while “the rules did not deal adequately” with motions of no confidence, the House speaker had “referred the matter [of the inadequacy of the National Assembly rules] to its rules committee”.
Deputy Chief Justice Dikgang Moseneke, raising concerns about the time it sometimes took for Parliament to move, asked Heunis if the court should then “postpone the matter pending Parliament finishing deliberating and formulating the rules” or whether it should make a judgment with a lacuna?
Drawing on a statement from Davis’s earlier judgment, Heunis said while it may “take time to change things”, South Africa was a “deliberative democracy” and that the matter should be postponed – if not dismissed all together.
Mogoeng asked Heunis if the court “should not decide in a way that speaks to that lacuna” and that it “disempowers whoever might want to table a motion of no confidence".
Heunis responded: “No, emphatically no … Parliament is attending to the matter in response to the high court judgment.”
To which Moseneke mused on whether it would be possible to hold that Sisulu had not acted unconstitutionally, but still “deal with the constitutional matters that are required to be addressed”.
Heunis “urged” the court “to vindicate the speaker because he has been wronged in this matter”.
Judgment was reserved.