The Constitutional Court has ruled that neither the ANC nor the DA should be allowed to block a motion of no confidence in the president.
A majority of the court today ruled that a motion of no confidence was a “vital tool to advance our democratic hygiene” and “a motion of no confidence in the president cannot be left to the whim of the majority or minority (parties on Parliament’s programme committee)”.
In the majority judgment, penned by Deputy Chief Justice Dikgang Moseneke and in which five other justices concurred, the court found Parliament’s rules were lacking when it came to motions of no confidence.
The Constitution provides for a motion of no confidence in the president, but Parliament’s internal rules do not provide the express procedures to give effect to the right.
The ruling follows a legal battle between DA parliamentary leader Lindiwe Mazibuko, Parliamentary speaker Max Sisulu and Mathole Motshekga, the former chief whip of the ANC, and the National Assembly.
Mazibuko gave notice of her motion of no confidence in President Jacob Zuma in November.
The matter subsequently became deadlocked in the National Assembly’s programme committee, which makes decisions on the programme of Parliament by consensus.
The Constitutional Court today dismissed Mazibuko’s application for leave to appeal a Western Cape High Court order which found that the speaker of Parliament did not have a residual power to schedule a motion of no confidence in the president.
The DA, however, raised an alternative application for leave to appeal, namely that Parliament’s rules were insufficient in that they did not expressly provide for procedures governing a motion of no confidence.
It ruled that it would be “inimical to the vital purpose (of the motion) 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 court ruled.
Moseneke ruled that “to the extent that the rules regulating the business of the Programme Committee do not protect or advance or may frustrate the rights of (the DA) or other members of the Assembly in relation to the scheduling, debating and voting on a motion of no confidence … they are inconsistent with (the constitution) and invalid.”
Although Sisulu has conceded there was a gap in Parliament’s rules and reported on progress to amend them, the Constitutional Court has decided to impose a six-month deadline on Parliament to do so.
This was partly because of the acrimonious nature of the dispute between the parties over what the new rules should say.
Moseneke said the “differences between the applicant (Mazibuko) and the chief whip make it most improbable that the lacuna (gap in the rules) will be corrected”.
He found that the court was also bound to declare invalid any conduct which it found to be unconstitutional.
“An order of constitutional invalidity is not discretionary. Once the court has concluded that any law or conduct is inconsistent with the Constitution, it must declare it invalid.”
Moseneke therefore set a six-month deadline for Parliament to amend the rules.
Mazibuko’s argument against the high court finding that Sisulu had a discretionary, residual power to schedule her motion of confidence for debate was rejected by the court.
It found that Sisulu’s discretionary powers only applied to situations not dealt with in the rules and that there were rules that related to setting and scheduling of “any motion”.
The court also ordered the DA to pay Sisulu’s costs because it “rushed to court” regardless of Sisulu’s reasonable request for time to take legal advice.
A minority judgment, which was penned by Justice Chris Jaftha and in which Chief Justice Mogoeng Mogoeng, Justice Ray Zondo and acting justice Nonkosi Mhlantla concurred, would have dismissed all the applications for leave to appeal.
The minority judgment also did not find Parliament’s rules inconsistent with the Constitution.
“In these circumstances the court does not have to determine the constitutionality of the rules, which are about to change to cater for the very complaint raised by (Mazibuko),” said Jafta.
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