[Justice] Scalia tends to lampoon his enemies. A “ ‘living-Constitution’ judge,” he explained, is a “happy fellow who comes home at night to his wife and says, ‘The Constitution means exactly what I think it ought to mean!’ ” By contrast, Scalia said, he was sometimes forced by the rigors of originalist methodology to make decisions that lead to consequences he finds repugnant.
In November last year the leader of the opposition in the NA gave notice of a motion of no confidence in President Jacob Zuma. After some wrangling, the programme committee of the NA met to consider the proposed motion of no confidence. However, its deliberations on the motion were deadlocked. Because there was an absence of consensus between the parties, the speaker concluded that the motion could not be scheduled and could therefore not be debated or voted on.
The Democratic Alliance (DA) rushed to the High Court, but for various technical reasons relating to how the case was framed the application was dismissed. Eventually the DA appealed to the Constitutional Court, against the decision of the High Court, that the speaker lacks the residual power to schedule a motion of no confidence when the programme committee cannot arrive at a consensus on tabling the motion. This appeal was dismissed.
In the alternative, the DA sought direct access to the Constitutional Court to challenge the constitutionality of the rules of the NA that in effect blocked members of political parties from bringing a vote of no confidence to the floor for debate and a vote. This challenge was successful.
The speaker as well as the chief whip of the ANC cross-appealed on various grounds. The speaker’s cross-appeal was upheld, but both the chief whip’s cross-appeals were dismissed. (I explain these possibly tedious technicalities because many people asked on Twitter how the Court could have dismissed the DA’s appeal, yet at the same time could have declared invalid chapter 12 of the rules of the NA.)
Despite these seemingly boring technicalities, the judgment in Mazibuko v Sisulu and Another reaffirms important principles about the nature of our constitutional democracy, building on the principles first laid down by the Constitutional Court in Oriani-Ambrosini, v Sisulu, Speaker of the National Assembly. Section 102(2) of the Constitution allows the NA, by a vote supported by a majority of its members, to pass a motion of no confidence in the President. If such a vote is passed, the President and the other members of the Cabinet and any deputy ministers must resign. The judgment helps to provide a definitive explanation of this provision and its purpose in our democracy.
The majority judgment (authored by deputy chief justice Moseneke) found that the Constitution required the rules of the NA to permit its members to deliberate and vote on a motion of no confidence in the President. The rules had to allow all members to formulate such a motion of no confidence, to bring the motion to the notice of members of the NA, to table it for discussion and to vote on it.
As section 42(3) of the Constitution affirms, the NA is elected “to represent the people and to ensure government by the people under the Constitution”. According to the Constitutional Court:
A motion of no confidence in the President 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 ever-present possibility of a motion of no confidence against the President and the Cabinet is meant to keep the President accountable to the Assembly which elects her or him. If a motion of no confidence in the President were to succeed, he or she and the incumbent Cabinet must resign. In effect, the people through their elected representatives in the Assembly would end the mandate they bestowed on an incumbent President.
This right to have a motion of no confidence considered and voted on is central to the “deliberative, multiparty democracy envisioned in the Constitution”. As the Court pointed out, it “implicates the values of democracy, transparency, accountability and openness”. It is for this reason that a “motion of this kind is perhaps the most important mechanism that may be employed by Parliament to hold the executive to account, and to interrogate executive performance”.
The reasoning of the Court is based on the understanding that our Constitution establishes a robust system of separation of powers and functions (and of checks and balances) between the three branches of government. As the President is not directly elected by the voters, but rather indirectly elected by the NA, the NA (as ultimate representative of the people) has a constitutional duty to hold the President and his or her Cabinet to account.
If the NA loses confidence in the President, it can fire him on behalf of the voters by adopting a vote of no confidence in him. Our Constitution envisages a robust separation of tasks between the legislature and the executive and provides for checks and balances in the exercise of power by the other branch. The threat of passing a vote of no confidence in the President is one of the most formidable checks on the exercise of power by the President and his or her Cabinet.
In practice, the NA will not pass a vote of no confidence unless the majority party in the NA loses confidence in the President. The situation faced by former president Thabo Mbeki after the post-Polokwane ANC leadership decided to “recall” him, is a case in point. Had Mbeki not resigned, the ANC members of the NA would have been instructed to pass a vote of no confidence in him. This is arguably one of the reasons why President Mbeki did not resist his “recall” by the ANC leadership.
Despite this obvious practical insight, the right to initiate a motion of no confidence is accorded to every member of the NA, not only the members of the majority party. The rules of the NA may not “deny, frustrate, unreasonably delay or postpone the exercise of the right”. This means a decision whether a vote of no confidence is tabled, debated and voted on:
cannot be left to the whim of the majority or minority in the programme committee or any other committee of the Assembly. It would be inimical to the vital purpose of section 102(2) to accept 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. It is equally unacceptable that a minority within the Committee may render the motion stillborn when consensus is the decision-making norm.
The NA naturally has the constitutional authority to “determine and control its internal arrangements, proceedings and procedures”, but such authority must be exercised in conformity with the Constitution. When a motion of no confidence is tabled, it “must be accorded priority over other motions and business by being scheduled, debated and voted on within a reasonable time”. The NA is therefore required to “take prompt and reasonable steps to ensure that the motion is scheduled, debated and voted on without undue delay”.
Despite this important victory, the DA did not emerge unscathed from the judgment. Because the DA “rushed to court” and launched the proceedings “regardless of the speaker’s reasonable request for time to take legal advice” and to explore other possibilities to solve the impasse, the DA was slapped with a cost order in favour of the speaker.
However the chief whip of the ANC was not similarly successful with his cross-appeal against the costs order of the High Court, or any of his other appeals. The majority explained the reasons for this failure as follows:
Unlike the speaker, the chief whip resisted and denied that the applicant was entitled to have a motion of no confidence tabled in the Assembly. That attitude of the chief whip, in large measure, precipitated the applicant’s rush to Court. It was only at the hearing that the chief whip appeared to concede the right of the applicant to have a motion of no confidence tabled before the Assembly. Despite this concession in the High Court, before us the chief whip persisted in the attitude that the rules do not evince a lacuna and that the right of a member of the Assembly to have a motion of no confidence voted on by the Assembly requires the consent of the majority party.
The granting of the cost order against the DA, the findings in favour of the speaker and the rejection of the chief whip’s appeals seem to be animated by a concern about the tendency to use the courts to resolve highly politicized constitutional disputes, rather than to try and resolve these disputes in a less confrontational manner.
The implicit (but never expressed) reasoning behind these different findings of the Constitutional Court is that it would behove members of the NA (including the leader of the opposition and the chief whip of the majority party) to take good legal advice, not to rush to court, and to look at problems of a constitutional nature with a clear and non-partisan eye, with a view to uphold the Constitution, including the separation of powers doctrine. Approaching the court must always be an option, but it must seldom be the first option.
The DA can be faulted for rushing to court (I would argue this was to gain maximum publicity) before allowing the speaker time to solve the problem. The ANC chief whip can be faulted for protecting the President at all cost, despite the obvious constitutional problems with his argument. Who cannot be faulted is the majority of judges of the Constitutional Court, whose judgment affirms the important democratic role that the Parliament must play in our democracy.BACK TO TOP