Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
25 March 2024

Retaining Nosiviwe Mapisa-Nqakula as Speaker is not a legal matter, but a political choice

Whether Nosiviwe Mapisa-Nqakula remains Speaker of the National Assembly is not a legal matter. Neither is it a matter of the application of the ANC’s step-aside rule, as that rule applies to stepping aside from party activities. As with all the previous ANC decisions to replace the Speaker, this is a purely political decision that the ANC caucus is entitled to make.

The position of the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, who faces arrest for allegedly soliciting cash bribes while she was minister of defence to secure contracts with the SA National Defence Force, has become untenable. She is, however, unlikely to resign in the near future, not least because she continues to enjoy political support from the ANC.

In response to her imminent arrest, Mapisa-Nqakula purported to take “special leave” as Speaker and launched an urgent court bid to interdict her arrest and to force the National Prosecuting Authority (NPA) to provide her with “the entire state brief”, including the entire police docket and “the entire investigation, including the investigation diary or logbook, all witness statements and all real evidence forming part of the investigation”.

Mapisa-Nqakula’s application seems to be premised on the false assumption that she is entitled to special treatment and that it would be outrageous to arrest her because she is a senior ANC leader and (as an afterthought) also the Speaker.

This is as depressing as it is predictable. While senior ANC leaders, as well as other famous or wealthy individuals (Markus Jooste, Jacob Zuma and Kelly Khumalo come to mind), have in the past enjoyed special treatment from the Hawks and the NPA, this is not normal or acceptable. In law, Mapisa-Nqakula does not have more rights as a criminal suspect than, say, Thabo Bester, Nandipha Magudumana or the accused in the Senzo Meyiwa trial.

While the Speaker is entitled to fair treatment by the NPA, and while it is not inconceivable — given the recent history of bumbling by the NPA in high-profile cases and despite the lack of evidence to that effect so far — that the NPA may have made mistakes in this case, she is not entitled to dictate to the NPA how she should be brought before a court.

Her rights as a criminally implicated, soon-to-be criminally accused person (including her right to be presumed innocent by the presiding judge who conducts the trial) should be respected. But she enjoys these rights as a criminal suspect and accused, which means they do not apply to her in her capacity as Speaker and cannot be invoked to protect her political position as Speaker. As Speaker, she can be judged politically and there is no bar against removing her as Speaker, as this is entirely separate from the anticipated court processes.

This is why the remarks made on Saturday by President Cyril Ramaphosa about her possible removal are self-evidently misleading and disingenuous. Asked about the Speaker’s removal, Ramaphosa urged the public “to allow party processes to unfold”, pointing out that Mapisa-Nqakula had not yet been charged.

“There’s a process that’s unfolding,” he said. “We have processes, geared and independent institutions and in the end, we must rely on those institutions to do their work.”

This comment presents what is essentially a political decision (whether it is politically — and as a matter of principle — tenable for Mapisa-Nqakula to remain as Speaker despite being implicated in serious criminal acts) as a purely legal issue or as an issue of ANC factional politics. This is not surprising, given the fact that the ANC’s step-aside rule has formalised the party’s political decision to cede its moral compass to the NPA, and thus not to act against party leaders who bring the ANC into disrepute unless they are formally charged with a criminal offence.

The Speaker is a politician elected by fellow members of the National Assembly as Speaker, not an ordinary employee. Her removal is not guided by the ANC’s constitution or internal ANC politics, but by the South African Constitution. As she can be removed from office by a vote of no confidence by the National Assembly, she retains her position only if a majority of MPs (practically speaking, at the moment this means the ANC caucus) retain confidence in her Speakership.

Whether she continues to enjoy this confidence is not a legal matter. Neither is it a matter of the application of the ANC’s step-aside rule, as that rule applies to stepping aside from party activities. As with all the previous ANC decisions to replace the Speaker, this is a purely political decision that the ANC caucus is entitled to make. (Realistically, this means the President in consultation with other senior leaders of the ANC will have to make the decision — something Ramaphosa has now signalled he will not do — demonstrating yet again how reluctant the ANC is to act against members credibly implicated in corruption.)

It is a matter of political choice, based on the values and principles of the parties represented in the National Assembly. For example, a party that continues to express confidence in a Speaker, say, implicated in racism, or who supports the Israeli genocide in Gaza, or suggests that women wearing short skirts deserve being raped, would be making a political choice which — hopefully — will be harshly judged by voters. A party leader who justifies this inaction by muttering that internal processes must first be followed should not get away with this attempt to turn a political decision into a legal or procedural one.

The same holds true for a party that continues to support a Speaker credibly implicated in serious corruption, as it would signal to voters that it is not serious about rooting out corruption in its midst. A party that hides behind “processes” and “procedures” to justify not taking a political decision to act against individuals implicated in corruption should be judged accordingly.

This is not the end of the matter.

To retain her Speakership (and the generous salary that goes with it) Mapisa-Nqakula announced late last week that she was taking “special leave”, despite the fact that neither the Constitution nor the rules of the National Assembly provide for the Speaker taking special leave.

It is true that the rules of the National Assembly do allow individual MPs to take a leave of absence. However, it is not clear that these rules apply to the office of the Speaker. In any event, in terms of rule 36, such a leave of absence (for more than 15 consecutive sittings of the National Assembly) requires approval by the members of the National Assembly.

National Assembly rule 35 states that the attendance of MPs at official parliamentary business is ordinarily regulated by the political parties. However, rule 36 states that “the period for which leave may be granted to a member by the member’s party, other than maternity leave and parental/adoption leave as provided for in the approved attendance policy, may not exceed 15 consecutive sitting days in a session”.

Rule 36 also provides that a member may request permission to be absent for more than 15 consecutive sitting days, which the National Assembly can either approve or reject. However, rule 37 states that an MP who “absents himself or herself for 15 or more consecutive sitting days of the Assembly without authorisation … loses his or her membership of the National Assembly in accordance with Section 47(3)(b) of the Constitution.”

I am, however, doubtful that these rules apply to the office of the Speaker as Speaker. The Speaker wears two hats. First, she is an MP subject to the ordinary rules applicable to other MPs where this is not in conflict with her role as Speaker. Second, she serves as a constitutional office-bearer — Speaker — accountable to members of the National Assembly and dependent on their continued confidence to serve in this role.

As I read the rules, the Speaker could retain her job as an MP, by occasionally attending sittings of the Assembly to ensure she is not absent for more than 15 sittings, but she cannot retain her job as Speaker as she would have been absent as Speaker for more than 15 sittings.

While the rules are silent on this, the rules could arguably be read to apply mutatis mutandis to the Speaker serving as Speaker. In other words, the rules could be interpreted to state that the Speaker is not permitted to be absent from her job as Speaker for more than 15 consecutive sittings. Whether this is the case is at best unclear as it does not resolve the problem that will arise if the Speaker is absent as Speaker for more than 15 sessions, but attends the National Assembly as an MP during this time.

In any event, all this speculation should have been unnecessary. A Speaker who took the best interest of Parliament and of our democracy seriously would long since have resigned to protect the institution from the fallout. A governing party that did the same would have requested her to resign if she had not done so herself.

Hopefully, come 29 May, voters will judge the ANC harshly for this failure.

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