Parliament is now duty-bound to ensure that a debate of no confidence in the president or his Cabinet is not only held but it is given due priority by the legislature.
On Tuesday, Parliament adopted a new rule that would allow any member of Parliament to table this motion, forcing the speaker of the National Assembly, in consultation with the leader of government business (the country's deputy president) and the chief whip of the majority party to ensure the motion of no confidence is scheduled, debated and voted on within a reasonable period of time given the programme of the assembly.
Reading out the rule before its adoption, ANC chief whip in the national assembly, Stone Sizani, said the party had noted the declaration of invalidity by the Constitutional Court of the assembly rules pertaining to motions of no confidence in the president or Cabinet; which was suspended for six months to allow for the defect to be remedied.
According to the new rule:
- A member [of Parliament] may propose that a motion of no confidence in the Cabinet or the president in terms of section 102 be placed on the order paper.
- The speaker of the National Assembly should then accord the motion due priority and before scheduling it should consult with the leader of government business and the chief whip of the majority party.
- The motion should comply, to the satisfaction of the speaker, with the prescripts of any relevant law or any relevant rules and orders of the House and directives and guidelines recommended by the rules committee and approved by the House, before being placed on the order paper, and should include the grounds on which the proposed vote of no confidence is based.
- The speaker may request an amendment of or in any other manner deal with a notice of a no confidence motion which contravenes the law, rules and orders of the House or directives and guidelines approved by the House.
- After proper consultation and once the speaker is satisfied that the motion of no confidence complies with the aforementioned prescribed law, rules, orders, directives or guidelines of the House, the speaker should ensure that the motion of no confidence is scheduled, debated and voted on within a reasonable period of time given the programme of the assembly.
"If a motion of no confidence cannot reasonably be scheduled by the last sitting day of an annual session, it must be scheduled for consideration as soon as possible in the next annual session," states the rule.
In August last year, the Constitutional Court judged that the rules of Parliament were unconstitutional and ordered that they should be aligned with the Constitution within six months.
The Constitutional Court dismissed the Democratic Alliance's appeal against a high court in Cape Town judgment that the National Assembly'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 the gap in the rules.
This was after the Democratic Alliance parliamentary leader, Lindiwe Mazibuko tried to table a motion of no confidence on President Jacob Zuma, on behalf of eight opposition parties in November 2012.
Parliament's programming committee, chaired by National Assembly 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 Zuma before the ANC's national elective conference in Mangaung in December 2012. Zuma was confirmed as president of the ANC at the conference.
Mazibuko had then sought urgent relief from the high court in Cape Town 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 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".