As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the past 23 years the ritual has been established that the President of the country addresses a joint sitting of Parliament early each year, accompanied by an elaborate display of pomp and ceremony and ever increasing “security measures”. This event has become known as the State of the Nation Address (SONA for short). On Tuesday – as controversy raged about the possible removal of Jacob Zuma as President of the country – SONA was postponed. There is nothing in the Constitution or the rules of Parliament that prohibits such a postponement. In fact, nothing requires the President to deliver a SONA. Arguably, SONA could easily be cancelled without the nation being any the poorer for it and without any legal rule being broken.
At the time of writing, journalists and commentators are engaged in feverish speculation about whether President Jacob Zuma (he is still President of the country as I write this), will or will not deliver the annual State of the Nation Address (SONA). The fact that the presiding officers of Parliament have announced that they are postponing SONA, suggests that they might believe that someone else may be President by the time the postponed SONA is held.
Nothing is clear, and speculation about the matter is just that: speculation. Who knows whether President Zuma will be “recalled” on Wednesday when the National Executive Committee (NEC) of the African National Congress (ANC) meets to – yet again – discuss his fate. Who knows whether he will resign immediately or whether he will have to be removed by a vote of no confidence (or by impeachment) in Parliament?
I am going to refrain from joining in the speculation on this matter. Until the NEC makes a clear decision either to retain President Zuma as President of the country or to have him removed (something the NEC has so far – for reasons that I cannot fathom – decided not to do), speculating about it is about as useful for humanity as speculating about whether Kim Kardashian’s niece (twice removed) will have a muffin or eggs and bacon for breakfast.
But let us look at SONA itself. Why is it held? Who decides on whether it should be held at all and when it should be scheduled? Can it be cancelled or postponed?
Ostensibly, SONA is held so that the President (serving as both head of state and head of the national executive) can report back to the nation and to its elected representatives on his or her government’s performance over the previous year and on its plans for the year ahead. To me it looks as if SONA rituals have strong roots in the traditions of the colonisers of South Africa.
In Britain, the head of state (currently Queen Elizabeth) delivers a Queen’s speech in the presence of MPs, peers and other dignitaries in the House of Lords at the start of each year. In this speech the Queen announces a list of the laws that the government hopes to get approved by British Parliament over that coming year.
The South African ritual has evolved (partly because in South Africa – unlike in Britain – the head of state and the head of the executive is the same person), and perhaps partly under the influence of the United States. In the US, the President delivers a “State of the Union” speech each year, in which the President brags about all the supposedly wonderful things his administration had done in the previous year and what its plans are for the year ahead.
(And now that the incumbent is Donald Trump, when he manages to read the entire speech from the teleprompter without stumbling and without peeing is his pants, the conservative media outlets call his performance “presidential”.)
In South Africa, the Constitution does not provide explicitly for the President to deliver a SONA. In terms of section 84(2)(d) of the Constitution the President is responsible for “summoning the National Assembly [NA], the National Council of Provinces [NCOP] or Parliament to an extraordinary sitting to conduct special business”. SONA is arranged in terms of this section, which allows the President to ask Parliament to arrange a joint sitting of the two houses of Parliament, where the President can then deliver SONA.
The Joint Rules of Parliament affirms this position, as rule 7(1) states that: “The President may call a joint sitting of the Houses when it is necessary for the President to deliver the annual or a special address to Parliament”.
Neither the Constitution, nor the Joint Rules (at least, how I interpret it) are peremptory and they do not impose a duty on the President to call a joint sitting to deliver SONA, but rather states that the President may exercise this power if he or she believes that it is necessary to do so. If he believes it is not necessary to deliver SONA, he need not call a joint sitting of Parliament for that purpose.
So, if the President wishes not to deliver a SONA speech, he or she can choose not to call the two houses of Parliament to an extraordinary sitting where SONA can be delivered. If the President decided not to deliver SONA, that would be the end of the matter. It would – from a constitutional and legal perspective – be of little importance.
But what happens when the President decides that he or she wishes to address the two houses of Parliament at a joint sitting for a SONA because he or she may feel it is necessary to deliver SONA and calls the houses together in terms of section 84(2)(d) of the Constitution?
Because of the separation of powers doctrine, the President is not the person who decides on the date and time on which SONA is schedule, as the President is not a member of the legislature and has no leadership role in the legislature. Once the President has requested the Speaker to call a joint sitting of Parliament, it is the Speaker and the Chairperson of the NCOP who must refer the matter to the Joint Programming Committee (consisting of members of both the National Assembly and the NCOP) who must then decide on when to schedule SONA.
This is made clear by Joint Rule 93(a) which states:
The Joint Programme Committee must prepare and, if necessary, from time to time adjust the annual programme of Parliament, including the legislative programme.
This rule clearly allows for a decision to reschedule SONA, as the rule allows for adjustments of the programme of Parliament. It is less clear whether the Speaker and the Chairperson of the NCOP have the power to postpone SONA in the absence of a decision taken by the Joint Programming Committee. But this is what they have done, announcing on Tuesday that:
We have, regrettably, come to the conclusion that there is little likelihood of an uneventful Joint Sitting of Parliament this coming Thursday. With this in mind, we decided to approach the President of the Republic to propose that we postpone the Joint Sitting in order to create room for establishing a much more conducive political atmosphere in Parliament. When we met the President, we then learnt that he was already writing to Parliament to ask for the postponement of SONA.
In terms of the Joint Rules, neither the Speaker and the Chairperson of the NCOP, nor the President has the power to postpone SONA. In terms of Joint Rule 9 the Speaker and Chairperson of the NCOP has a specific procedural role in communicating the decision about when SONA will be held (or whether it will be postponed) taken by the Joint Rules Committee:
The date and time of a joint sitting must be made known to the members of the Assembly and the Council (a) by placing it on the Order Papers of the Houses; (b) by way of an announcement by the officer presiding at a sitting of a House; or (c) by giving notice to the members in a way determined by the Speaker and the Chairperson of the Council for their respective Houses.
However, the Speaker and Chairperson of the NCOP might invoke Joint Rule 2 (if they are at all worried about following the rules they are bound by and if they did not merely postpone SONA on instructions of the governing party – something that would constitute an impermissible conflation of party and state). Joint Rule 2 states that:
The Speaker and the Chairperson of the Council, acting jointly, may give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide. (2) A rule made by the Speaker and the Chairperson of the Council, acting jointly, remains in force until a meeting of the Joint Rules Committee has decided on it.
They could therefore argue that the current Joint Rules do not provide for the current situation, in which a sitting President is likely to be removed from office within days of his delivering SONA and may invoke Joint Rule 2 to justify their actions.
Of course, the larger question raised by the postponement is whether SONA is of much value and whether it matters at all. Every year after the delivery of the speech, politicians and analysts go on television to comment on SONA and they all seem to agree – whether they liked the speech or not – that what was said was of enormous importance. Maybe I am missing something, but the times I have listened to SONA I was bored stiff: the prose is leaden and uninspiring, the delivery is halting and unconvincing, and the content is usually no more than a laundry list of platitudes and promises clearly cobbled together by bureaucrats.
The only interesting thing I have ever witnesses during a SONA was when the EFF disrupted the speech and was illegally removed from the chamber.
So, would it make any difference to the lives of any South African if SONA was not only postponed this year, but cancelled?BACK TO TOP