The Constitutional Court on Tuesday dismissed opposition party's appeal against a Western Cape High Court judgment that Parliament's speaker did not have the power to schedule a motion of no confidence in the president for debate in the National Assembly.
In a majority judgment penned by deputy chief justice Dikgang Moseneke, the court further found that chapter 12 of the rules of Parliament was unconstitutional because it "does not provide for a political party, represented in, or a member of, the National Assembly to enforce the right to exercise the power to have a motion of no confidence in the president scheduled for a debate and voted upon … within a reasonable time, or at all".
Judges Sisi Khampepe, Bess Nkabinde, Johan Froneman, Johann van der Westhuizen and Thembekile Skweyiya concurred with Moseneke in a judgment that also declared that this finding of constitutional invalidity be suspended for six months to allow Parliament to address this gap in the rules – a process which it has already begun.
Moseneke noted, however, that the two reports on the progress of the reform submitted to the court by the speaker and deputy speaker recorded that the various political parties had met but "had not reached consensus on the possible content of revised rules".
"The lack of consensus on the draft rules is not surprising," wrote Moseneke, as there appeared to be "fundamental differences" between the Democratic Alliance (DA) and the chief whip's office "on whether the rules are constitutionally deficient and therefore what the rules should provide for in relation to a motion of no confidence in the president".
The court also awarded costs against the DA's parliamentary leader, Lindiwe Mazibuko, who was the first applicant in the matter.
A welcome judgment
With the Constitutional Court essentially sending both parties back to the drawing board to iron out the details on how to get Parliament to work more effectively, both parties quickly tried to spin the judgment in the favour.
The ANC declared the judgment "victory for the rule of law and the doctrine of separation of powers".
In a statement released by the office of the Chief Whip of the ANC said: "We hold firmly to our view that this matter (disagreement amongst parties regarding programming matter) should not have been brought to court, as in our view, it is a political dispute that can be resolved by parties within Parliament."
"The judiciary should not be placed in an uncomfortable position of interfering in internal affairs of an independent arm of the state, unless so directed by the Constitution. This view formed part of our arguments in court, and we are indeed vindicated that the case has been dismissed."
The party said it welcomed the Constitutional Court's direction that the rules of the National Assembly should be reviewed with a view to bring them in line with the constitutional rights of MPs to propose motions and provide for deadlock breaking mechanism, adding that the process for the review had already started long before the case was heard by the Western Cape High Court last year.
"We are confident that the process will be concluded before the date set by the court," it said.
At the same time, the DA also welcomed the judgment and declared it a victory, saying the court has ruled that the rules of Parliament are unconstitutional and that they should be aligned with the constitution within six months.
"This is a great victory for not only the DA but for democracy," it said.
The party admitted that it had been unsuccessful in its application to have the court find that the speaker had the right to schedule the debate it had requested but said this did not take away from what it called "a victory for our constitutional democracy and the right of Parliament to hold the executive accountable".
The party said it would study the judgment in more detail and work with the rules committee to remedy the defect in the rules.
The matter, which was heard in March this year, goes back to November 2012 when opposition parties had attempted to table a vote of no confidence debate in Parliament. Its programming committee, chaired by house speaker, Max Sisulu, was deadlocked on whether to schedule the debate with ANC members of Parliament against the scheduling and opposition members for it.
The ANC at the time had suggested that this was a politically-motivated strategy to discredit President Jacob Zuma before the ANC's national elective conference in Mangaung in December last year. Zuma was confirmed as president of the ANC at the conference.
Mazibuko had, on behalf of eight opposition parties, then sought urgent relief from the Western Cape High Court and asked that it rule for the matter to be heard on or before November 22, when Parliament was scheduled to close for the year. 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 in the Western Cape High Court 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.
In the Constitutional Court judgment, Moseneke noted that "the primary purpose of a motion of no confidence is to ensure that the president and the national executive are accountable to the assembly made up of elected representatives" and that it "plays an important role in giving effect to the checks and balances element of our separation-of-powers doctrine".
'Permissive and not peremptory'
The judgment found that the DA's argument that parliament's rule 2(1) which allows the speaker to "give a ruling or frame a rule in respect of any eventuality for which these rules do not provide" did not apply in this case – upholding a similar view that Davis expressed in the high court.
Rule 2(1) "is meant to cover matters not dealt with in the rules," noted Moseneke who found that the setting and scheduling of "any motion" is "regulated extensively" by Parliament's rules 187-190.
Moseneke found that rule 2(1) was "permissive and not peremptory" and that to construe it as peremptory when a deadlock arises "would run against the ordinary meaning of the wording" of the rule.
The opposition parties had also asked the Constitutional Court to alternatively declare that parliament's rules were unconstitutional as they did not properly allow a member of Parliament or party the right to have a motion of no confidence in the president scheduled for a debate and vote as a matter of urgency.
Moseneke noted that section 102(2) of the Constitution "is silent on the source or origin of the motion of no confidence" and that such a motion "is a vital tool to advance our democratic hygiene. It affords the assembly a vital power and duty to scrutinise and oversee executive action."
"The right to initiate a motion of no confidence is accorded to every member of the assembly who is entitled to seek, by a motion of no confidence, to garner support for a majority vote of the assembly", wrote Moseneke.
"This entitlement" he found, "flows readily from section 102(2) and its exercise may be regulated by assembly, but its rules may not deny, frustrate, unreasonably delay or postpone the exercise of the right."
Moseneke further added that it was "plain" that when such a motion is tabled, it "deserves the serious and prompt attention of the responsible committee or committees" in parliament and as a "last resort" of the national assembly itself.
Cannot be left to a whim
The deputy chief justice found it "strange" that parliament's programming committee made decisions by consensus rather than voting as the "plain meaning" of rule 129(2)(d) "seems to be that any question before the programming committee must be decided by a majority vote subject to the chairperson having a deliberative and a casting vote in the event of an equality of votes".
In the high court, judge Davis highlighted a gap or lacuna in parliament's rules as there was no mechanism to break a deadlock within the programming committee – which the Constitutional Court agreed with. Former ANC chief whip Mathole Motshekga had submitted in papers to the Constitutional Court that the "scheduling of motions is a product of political negotiations and agreement" and that deadlocks could be broken through such horse-trading.
The court, however, found that such reasoning would make the decision to schedule a motion "within the gift of the majority party" and in some instances the gift of the minority party.
Moseneke found such an approach was disagreeable as "a vital constitutional entitlement to move a motion of no confidence in the president cannot be left to the whim of the majority or minority in the programme committee or any other committee of the assembly" and that it would be "inimical" to the Constitution that a motion of no confidence in the president "may never reach the assembly except with the generosity and concurrence of the majority in that committee."
Lobbying, bargaining and negotiating between political parties, Moseneke found, may not take place in a "manner that unjustifiably stands in the way of, or renders nugatory, a constitutional prescript or entitlement" because "our Constitution is supreme and demands that all law and conduct must be consistent with it".
A motion of no confidence, Moseneke wrote, "must be afforded priority over other motions and business by being scheduled, debated and voted on within a reasonable time given the programme of the assembly. Once sponsored in a manner prescribed by the rules, the assembly must take prompt and reasonable steps to ensure that the motion is scheduled, debated and voted on without undue delay."
Moseneke said the Constitutional Court's declaratory order that Parliament's rule 2 was unconstitutional would not be invasive in terms of the separation of powers as the court "would not be formulating rules" for Parliament.
The minority judgment written by judge Chris Jafta with chief justice Mogoeng Mogoeng with judges Ray Zondo and Nonkosi Mhlantla concurring, had dismissed the application for leave to appeal and direct access to the Constitutional Court as the DA and other opposition parties had not made out a case for the granting of direct access and the matter was not urgent since Parliament had already begun the process of amending its rules.
They also found that the separation of powers doctrine prevented the court from intervening in matters relating to Parliament.