For the first time since the dawn of SA’s democracy, the judiciary has been asked to force Parliament to debate the future of the executive. None of the three branches of government wants to be in this bizarre situation, but President Zuma’s leadership, and the trail of problems it leaves in its wake, has driven them to this extraordinary intersection. The Western Cape High Court could trigger a domino effect that could cause the fall of government; or it could decide to pull everyone back from the precipice.
The parliamentary year is heading towards a dramatic end with the Western Cape High Court set to rule on Thursday whether the speaker of the National Assembly should urgently schedule a debate on a motion of no confidence in President Jacob Zuma.
The DA, on behalf of eight opposition parties in Parliament, made an application to the Western Cape High Court to compel the speaker, Max Sisulu, to schedule the debate and vote of no confidence before the last plenary of the year on Thursday.
This was after the ANC used its parliamentary majority to block the debate by preventing the programming committee from putting the matter on the order paper. The ANC national executive committee (NEC) however decided that the debate should not be blocked but that the matter was not urgent.
The opposition parties brought the motion of no confidence against Zuma earlier this month on the grounds that “under his leadership the justice system has been politicised and weakened; corruption has spiralled out of control; unemployment continues to increase, the economy is weakening, and the right of access to quality education has been violated.”
Following the ANC’s initial refusal to allow the debate, DA parliamentary leader Lindiwe Mazibuko applied to the high court in a bid to force Sisulu to schedule it before 22 November.
“Should the National Assembly be denied the opportunity to debate and vote upon the motion, myself and other members of the National Assembly will be deprived of our constitutional entitlement to place before the National Assembly a motion of no confidence, the foregoing being an integral part of the function of Parliament to hold the President to account,” Mazibuko says in her founding affidavit.
“I contend that the President’s leadership is damaging the country in an ongoing basis. The longer the members of the National Assembly are deprived of an opportunity to debate and vote on the motion of no confidence, the worse the potential harm becomes,” she states.
Mazibuko says if the debate does not take place this week, Parliament next sits in February 2013. She says in the affidavit that because of the gravity of the motion and its consequences, the National Assembly must debate and decide the motion as a matter of urgency.
“It is not good enough to postpone consideration of the motion for three months. It seems clear that the intention of the majority party leadership in Parliament is indeed to defer the voting on the motion of no confidence for as long as possible if not to ensure that the debate never sees the light of day,” Mazibuko states.
When the application was heard on Tuesday, her lawyer, Anton Katz, told Judge Dennis Davis that the motion would lapse if it was not scheduled for debate by Thursday.
“Everyone in this room knows they [the ANC] don’t want to debate it and it’s not about time in this instance. These [issues] are not things we make up... Peoples’ representatives have lost faith in the president.
This debate needs to take precedence over other debates,” Katz argued, according to Sapa.
The respondents in the case, Sisulu and ANC chief whip Mathole Motshekga, are opposing the application. Sisulu’s lawyer, Jan Heunis, said his client’s hands were tied and that the DA had jumped the gun by not allowing parliamentary processes to run their course.
Motshekga’s lawyer, Nazeer Cassim, asked the court to have faith in the ANC. “You should not make the assumption that the majority party will always do the wrong thing,” he said, Sapa reported. “If the majority party does do the wrong thing [by not scheduling the debate], that’s where the Concourt comes in.”
Davis was clearly mindful of the extraordinary nature of the application and said during the hearing that he did not want to run Parliament.
On Monday the ANC expressed concern about the DA’s court application, saying the sanctity, independence and jurisdiction of Parliament should be protected. “By taking a purely parliamentary programming matter to court, the opposition is reducing parliament to be subsidiary of the judiciary and thereby impeding the legislative independence of Parliament,” the ANC NEC said.
Davis has reserved judgment. “I’m not going to make this judgment in three minutes. It’s ridiculous to put such pressure on judges for matters of this importance. Judges are not just slot machines where you put something in and get something out… At most, judgment is going to be out on Thursday,” he said.
Mazibuko said if the judge ruled in their favour, the debate could still take place on Thursday afternoon. Her lawyer had told Davis that a “farewell speech”, to be delivered by the whips of the parties, was set down for 75 minutes on Thursday afternoon and that the debate on the motion of no confidence could take place instead.
Mazibuko told the Daily Maverick that although the debate ought to be allowed to take place it would have “less substance” if it took place on Thursday afternoon as the parties would have little time to prepare.
“This all could have been solved last Thursday at the meeting of the programming committee but it debilitated into a discussion about whether the debate should take place, instead of when. This is why we had to approach the court – it was not my first choice,” Mazibuko said. “Once the session ends, the motion lapses. That is untenable for me.”
She said the option existed to extend the parliamentary session and to schedule a special sitting of the National Assembly to debate the motion.
But this option is not stipulated in Mazibuko’s application. If Davis rules in her favour, the court can only compel Sisulu to schedule the debate by Thursday. Parliament will then have to contend with a crucial debate with far-reaching consequences for which MPs have had no time to prepare.
In the unlikely event of the vote of no confidence taking place and, rather more improbably, the opposition winning it, the president and his cabinet would have to resign.
Davis, therefore, is justifiably agitated that he is now under the whip to put Parliament under the whip in order to turn the heat on the executive. Neither the judiciary nor Parliament should have been placed in this predicament – particularly when they are in a race against the clock while having to contend with an issue of such grave national importance.
Is the opposition to blame for bringing the motion so late in the parliamentary schedule. Is this an expedient move to exploit the ruling party’s factional battles ahead of Mangaung and draw votes from MPs opposed to Zuma’s second term as ANC president?
Or does the blame lie with the ANC for acting like a schoolyard bully and not allowing the debate to be scheduled, only to find out later that this was unconstitutional and then trying to backtrack.
Or does the blame lie with the failure of leadership which created the undesirable situation in which a motion of no confidence in the president is under consideration?
What will it take to stop every institution in the country being pushed to the brink and the independence of organs of the state – the police, intelligence agencies and the prosecuting authority among others – from being compromised?
Something has got to give. And soon.