Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
President Jacob Zuma and his allies have called for disciplinary action to be taken against ANC MPs who supported a vote of no confidence in Zuma. Calling these MPs “traitors”, “Askaris”, or (slightly less incendiary) “ill-disciplined”, they have argued that MPs are only elected to the National Assembly (NA) because of their membership of their party and must at all times obey instructions from their party. This view ignores the precedent set by the recent Constitutional Court judgment on the vote of no confidence. It also fails to consider the possibility that provisions in political party constitutions that allow parties to expel MPs who vote against the party line might themselves be unconstitutional.
Before the 2014 election, several ANC members I know argued that they would vote for the ANC, despite their grave misgivings about the leadership of President Jacob Zuma. This was, they said, because you do not only vote for the leader of a party, but also for its policies and for the many good people in the party, including those on the party’s electoral list who would ultimately represent the party in the NA. Similar arguments were used by DA members weary of the propensity of its then leader to sabotage the party with Trump-like Twitter outbursts. (That was even before Helen Zille claimed that colonialism was not only negative, praising the piped water installed for white South Africans after colonial conquest and the apartheid judiciary.)
President Jacob Zuma and the defenders of absolute party discipline are now, in effect, disputing this claim. According to them, it matters not a jot what names are on a political party’s electoral list. What matters is who the leader of the party is and – to a lesser extent – who controls the extra-parliamentary wing of the party. MPs are just automatons, so the argument goes, who must follow the instructions of the extra-parliamentary leaders of the party, no matter what. If they do not like their leader they must shut up or resign and if they do not, they must be booted out of the party and out of the NA.
At the heart of this debate is a disagreement about the appropriate manner in which the pure proportional representation electoral system should operate. In terms of this system, MPs are elected to the NA because they belong to a political party and have been placed high-up enough on their party’s electoral list to be elected to the NA.
No one disputes the fact that if MPs displease the party leaders (if they “go rogue”, so to speak) by supporting a vote of no confidence against their own leader serving as President or Premier, the party has every right to “punish” them by not placing them on the electoral list before the next election (or by placing them so low down on the list that they would have no chance of being re-elected to Parliament).
But what happens in-between elections? Before the Constitutional Court judgment in United Democratic Movement v Speaker of the National Assembly and Others (the so called “secret ballot judgment”) many of us suspected that every political party has the right to expel an MP in accordance with the party constitution if the MP defies the instructions of the party leader.
This view of a pure proportional electoral system places political power firmly in the hands of the leader of the party and of the extra-parliamentary leadership of the party. In this view, MPs are in no way accountable to voters. Instead they are only and always fully accountable to the leader of the party – as long as the leader retains the support of his or her colleagues in the leadership structures of the party.
If you agree with this view, the argument that one can vote for a political party despite having misgivings about its leader becomes laughable. In this view the leader, in many respects, is the party. Moreover, if you are not a member of a political party and, hence, have no direct or even indirect say over the election of its leader(s), your democratic right to select who you are governed by is severely watered down.
The constitutions of both the African National Congress (ANC) and the Democratic Alliance (DA) contain provisions that allow the party to discipline and even expel public representatives of a party who fail to toe the party line. For example, section 5.4 of the ANC Constitution states:
ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the constitutional structures of the ANC.
Moreover, section 25.17.3 states that an ANC member will be guilty of misconduct (and could be disciplined and even expelled from the party) if he or she
Fail[ed], refus[ed] or neglect[ed] to execute or comply with any ANC Policy, Standing Order, Rule, Regulation or Resolution adopted or made in terms of this Constitution or breaching the provisions of this Constitution.
Several other disciplinary rules could also be invoked to discipline errant MPs who disobeyed the order to support President Jacob Zuma ion the vote of no confidence. These include:
25.17.6 Behaving in a manner which provokes or is likely to provoke or has the potential to provoke division or impact negatively on the unity of the ANC…. 25.17.19 In the case of a public representative, breaching his or her contract of deployment concluded with the NEC.
It is now at the very least unclear whether these provisions would pass constitutional muster. In this respect, the judgment in United Democratic Movement v Speaker of the National Assembly and Others is perhaps more radical than most observers might have realised because it rejects this absolutist view of how a pure proportional representation system operates and places a hand on the scales in support of MPs, diminishing the power that the extra-parliamentary leaders of a party hold over its elected MPs.
In this judgment Chief Justice Mogoeng confirmed that there is an inherent tension between, on the one hand, the obligation of MPs to hold the executive accountable and to serve the people, and, on the other hand, to adhere to the discipline of their party. Although party discipline remains important, the interest of the party must yield before the interest of the voters who elected the party (and its MPs) to the NA as well as to the broader interest of the country.
Members of Parliament have to ensure that the will or interests of the people find expression through what the State and its organs do. This is so because Parliament ‘is elected to represent the people and to ensure government by the people under the Constitution’.
In what has now become a celebrated passage from the judgment, the Chief Justice confirmed that in certain contexts, the duty of MPs would be to “follow the dictates of personal conscience” as this is what is affirmed by their oath of office (which trumps any allegiance to their party).
Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.
But the judgment is a bit more subtle than this passage might suggest. It does not ignore the fact that MPs are elected to the NA because they were placed on an electoral list by their party and hence – up to a point – have a duty to act as disciplined members of that party.
A way must be found to draw a line between allowing voting according to Members’ true conscience and the important responsibilities or obligations Members have to their parties, which would at times be in conflict. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution. The requirement that their names be submitted to the Electoral Commission before the elections is crucial. The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.
This passage suggests that the view espoused by President Zuma and his supporters is legally untenable. We do not only vote for a party leader. We vote for the members of the party placed on the party’s electoral list. While MPs have a duty to their party, this is always trumped by their duty to the voters and to the Constitution.
Although it is not clear that many voters actually decide on which party to support by looking at who appears on a party’s electoral list, most of us form an opinion about a party at least vaguely familiar with the types of people that appear on that party’s electoral list. (For example, people who decline to vote for the DA might note that Diane Kohler Barnard is one of its MPs, while people who decline to vote for the ANC might note that Bathabile Dlamini is one of its MPs.)
Which means that an argument could be made that a blanket provision in a political party’s constitution allowing MPs to be expelled from their party if they do not follow the party line might itself be unconstitutional. In Ramakatsa and Others v Magashule and Others the Constitutional Court held that the right to participate in the activities of a political party imposes on every political party the duty to act lawfully and in accordance with its own constitution. But the judgment went further. In the context of a discussion on the political rights guaranteed by section 19 of the Constitution, the majority held that:
political parties may not adopt constitutions which are inconsistent with section 19. If they do, their constitutions may be susceptible to a challenge of constitutional invalidity.
Section 19(3)(b) of the Constitution states that “every adult citizen has the right to stand for public office and, if elected, to hold office”. On its face, this section means that once elected, an MP has a right to hold office.
While she has no right to be placed high up on his or her party’s election list at the next election, any provision in a political party’s constitution which limits the right of an MP – once elected – to hold office would constitute a limitation on the right contained in section 19(3)(b) of the Constitution and might thus be unconstitutional and invalid. As an MP automatically loses her seat in the NA if she is expelled from the party, a provision that allows an MP to be expelled from a party would limit s 19(3)(b).
If this is so, nothing prevents the legislature from passing legislation allowing political parties to limit the rights of MPs as guaranteed in section 19(3)(b). But such a limitation would have to be reasonable and justifiable in terms of section 36 of the Bill of Rights, and would have to strike a balance between the need to enforce party discipline, on the one hand, and the need to allow MPs to serve the people – regardless of what their party leader might instruct them to do – on the other.
I would imagine a provision that allows a political party to expel an MP who has assaulted someone or is being charged with corruption, money laundering or racketeering, would be viewed as a reasonable and justifiable limitation on the right contained in section 19(3)(b). But a provision that allows an MP to be expelled because she followed her conscience, believing she was serving the voters that elected her by supporting a vote of no confidence in the President, might well be unconstitutional and invalid.
Where you stand in this debate depends on whether you believe the party and its leader is all important or whether you believe voters are all important. The one view is more democratic than the other, and in the UDM judgment the Constitutional Court tipped the scales in favour of voters and against party bosses. Personally, I think that is a good thing. But I am sure President Zuma would disagree.BACK TO TOP