DA to apply to court over motion of no confidence

Last week, mandated by ACDP, AZAPO, COPE, DA, IFP, UCDP, UDM, I tabled a motion of no confidence in President Zuma in terms of section 102(2) of the Constitution.

We tabled the motion because of a series of escalating crises in South Africa under the leadership of President Zuma. In particular, these relate to

• the justice system which has been weakened and politicised;
• corruption in the public service which has spiralled out of control;
• unemployment levels which continue to increase;
• an economy which is weakening; and
• the right of access to quality education has been violated.

It is inconceivable that our constitutional right to debate and vote on this motion can be negated by a committee of Parliament, simply because it was not possible to reach a consensus on whether to schedule the debate.

For this reason, we have written to the Speaker of the National Assembly, Max Sisulu, asking him to ensure that the motion of no confidence is debated in the National Assembly before the parliamentary session ends on 22 November 2012. Through the State Attorney, the Speaker has responded that he will consider the matter and revert to us by Monday.

This notwithstanding, we have today filed papers in the Western Cape High Court to compel the Speaker to take whatever steps are necessary to ensure that the motion is debated on or before Thursday, 22 November 2012. Should the Speaker's response on Monday indicate that he will not be scheduling the debate, we will proceed with this application on Tuesday, 20 November 2012.

The application and the founding affidavit may be viewed here.- PDF.

Text of the founding affidavit:

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) CASE NO 69 I990 /2012 In the matter between:

LINDIWE MAZIBUKO, LEADER OF THE OPPOSITION IN THE NATIONAL ASSEMBLY - First Applicant

MAXWELL VUYISILE SISULU, SPEAKER OF THE NATIONAL ASSMEBLY - First Respondent and

MATHOLE SEROFO MOTSHEKGA MP, THE CHIEF WHIP, THE NATIONAL ASSEMBLY - Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned

LINDIWE DESIRé MAZIBUKO

do hereby state under oath that: 1. I am an adult female member of parliament and the Leader of the Opposition in the National Assembly designated as such in terms of Section 57(2)(d) of the Constitution of South Africa, 1996 ("the Constitution").

THE PARTIES

The facts herein are, unless the contrary appears from the context, within my own knowledge and are true and correct. Where l make legal submissions, unless otherwise indicated, i do so on the basis of advice given to me by my legal advisors and I believe such advice to be correct. Where I rely on information not within my knowledge I do so on the basis of information supplied to me or upon objectively determinable facts.

l am the applicant herein in my capacity as the Leader of the Opposition in terms of Section 57(2) of the Constitution of the Republic of'South Africa, 1996 (the "Constitution").

I bring this application on my own behalf as Leader of the Opposition and on behalf of the following political parties represented in the National Assembly:

Democratic Alliance

Congress of the people

Inkatha Freedom Party

African.Christian Democratic Party

Azanian People's Organisation

Freedom Front Plus

United Democratic Christian Party; and

United Democratic Movement

The first respondent is MAXWELL VUYISILE SISULU, MP SPEAKER OF THE NATIONAL ASSEMBLY, cited in his official capacity.

The second respondent is DR MATHOLE SEROFO MOTSHEKGA MP, the Chief Whip of the National Assembly cited in his official capacity. No costs are sought against him unless he opposes the relief sought herein.

JURISDICTION

Parliament has its seat in Cape Town, within the jurisdiction of this Court, by virtue of Section 42(6) of the Constitution. The Respondents keep offices at Parliament.

The applicant ‘seeks final interdictory relief under, inter alia, section 172(1)(b) of the Constitution. This application is a constitutional matter falling within this Court's power, as ‘contemplated by section 172(1) of the Constitution.

NATURE OF THE RELIEF SOUGHT

The applicant seeks an order on an urgent basis directing the first respondent take whatever steps are necessary to ensure that the motion of no confidence in, inter alia, the President scheduled for debate and a vote before the National Assembly for debate at its sitting on or before 22 November 2012.

Such motion was initiated by me on 8 November 2012 and I gave notice of my intention to move a motion of no confidence in the President, at the earliest opportunity. I should mention that the notice was given by me on 8 -November 2012, immediately after the meeting of the programming committee which was held on the same day.

My notice of the motion was given on behalf of all political parties mentioned above.

SUPREMACY OF THE CONSTITUTION

In terms of section l of the Constitution," and as confirmed by the Courts and recently by the Constitutional Court in Justice Alliance of South Africa v President of the Republic of South Africa,‘ South Africa is founded on the values of the supremacy of the Constitution and the rule of law. In that case, the Constitutional Court stated that "the significance of the rule of law and its close relationship with the ideal of a constitutional democracy cannot be over-emphasised."

The Constitutional Court further underscored section2 of the Constitution, which enshrines the supremacy of the Constitution? Section 2 states that the Constitution is the supreme law of the country and that any law or conduct inconsistent with it is invalid.

The rule of law and the principle of legality govern and regulate all conduct of all organs of State, including Parliament.

Section 1(d) of the Constitution specifically establishes South Africa as a "mu|tiparty" democracy. 16. The relief sought herein seeks to vindicate that founding value.

SECTION 102(2) OF THE CONSTITUTION

I rely on section 102(2) of the Constitution. It reads as follows:

"If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign."

In order to give meaningful effect to section 102(2) of the Constitution, a motion of no confidence in the President must be scheduled for debate and a vote, when called for, as a matter of urgency. l must point out that, on a previous occasion when such a motion was moved, which was on 2 March 2010, it was debated by the National Assembly on 18 March 2010.

When 8 opposition parties, who represent of about a third of South African voters, request that the National Assembly resolve that it has no confidence in the President as they have done in the manner set- out below, the National Assembly must be given the opportunity to debate and vote on the motion withoutdelay. This application has been necessitated by the employment of procedural machinations calculated to deliberately frustrate this entitlement.

I, took the oath to obey, respect and uphold the Constitution (as required by item 4 of-Schedule 2 of the Constitution) as did the other members of the National Assembly I submit that it is my constitutional duty" to bring this challenge to what we contend is unlawful and unconstitutional conduct on the part of the first respondent. His inaction has prevented the motion of no confidence from being debated and voted upon. This frustrates the whole purpose of a motion of no confidence.

THE MOTION OF NO CONFIDENCE

On 8 November 2012, mandated by the parties listed in paragraph 5 above, I gave notice in the National Assembly in terms of NA Rule 98(1)(a) of a motion of no confidence in the President in terms of section 102(2) of the Constitution.

The notice of motion was placed on the National Assembly's Order Paper on Tuesday, 13 November 2012. The terms of the motion, as setforth in the Order Paper, are as follows:

"Draft resolution {Ms L D Mazibuko): That the House -

(1) notes that under the leadership of President Jacob G Zuma -

(a) the justice system has been politicised and weakened;

(b) corruption has spiralled out of control;

(c) unemployment. continues to increase

(d) the economy is weakening;

(e) the right of access to quality education has been violated, and therefore '

(2) in terms of Section 102(2) of the Constitution of the Republic of South Africa, 1996, pass a motion of no confidence in President Zuma."

The National Assembly's- Programme Committee (the "Programme Committee"), under NA Rule 190, determines the matters to be placed on the agenda for consideration by the National Assembly.

The first respondent is the chairperson of the Programme ‘Committee in terms of NA Rule 189(1). The other members of the Programme Committee are provided for in NA Rule' 188.

The Programme Committee sat on Thursday, 15 November 2012 to determine the programme of the National Assembly for the -forthcoming week.

At the meeting of 15 November 2012, the Chief ' Whip of the Democratic Alliance, Mr Watty Watson, requested that the scheduling of the motion be discussed by the Programme Committee, with a View to having the motion debated in the National Assembly during the . forthcoming. week.

The Programme . Committee..,could not reach consensus' on whether or not the motion should be scheduled for debate in the National Assembly.  Where consensus cannot be reached, the convention is for the first respondent to refer the matter to the Chief Whips' Forum under NA Rule 221 and 222, the objective being for the Chief Whips to reach political agreement.

The first respondent, during the Programme Committee meeting on 15 November 2012, noted the practice set out above, and predicted that the Chief Whips would not reach agreement. He therefore concluded that the motion could not be scheduled for debate.

After further debate, the first respondent reiterated the above and adjourned the meeting.

After the National Assembly sitting later that day, the Chief Whips of some of the parties mentioned in paragraph 5 above, met with the first respondent again to discuss the scheduling of the motion.

At about 20h00 that evening, my legal representative emailed a letter- to Ms Zuraya Adhikarie, Chief Legal Advisor in Parliament, setting out certain concerns about what had transpired." A copy of this letter is attached marked "LDM1". The letter, written on behalf of "myself and the parties listed above:

• indicated that the first respondent must decide, in terms of NA Rule 2(1), whether the motion should be tabled;
• requested that the first respondent confirm that he would take whatever steps were appropriate and necessary to ensure that the motion was scheduled for debate and vote in the National Assembly on or before 22 November 2012; and also;
• demanded that the first respondent inform my attorneys, by no later than 10h00 on Friday, 16 November 2012, whether the motion would be placed on the Order Paper of the National Assembly for the sitting on 22 November 2012.

At 09:14 on 16 November 2012, Ms Zuraya Adhikarie confirmed receipt of the letter.

By 10h00 this morning, my attorney of record had received a letter from the State Attorney, representing the first Respondent, a copy of which is annexed, marked Annexure "LDM2". The letter stated that the Speaker was attending a funeral in Lesotho, that the advice of Senior Counsel was being sought, but that a substantive response would be forthcoming only on Monday, 19 November 2012.

A further letter was received at 12:00 shortly thereafter, marked Annexure "LDM3" . It said .that .advice was still being sought and asserting that it would be "premature and wasteful" for an urgent application to be lodged in the interim. However the state attorney added that it was not necessary to seek leave to serve the Application on the Speaker, and that service could be affected at the state attorney.

FIRST RESPONQENT MUST MAKE A RULING

The ‘first respondents failure to direct, by whatever means, that the motion be debated in the National Assembly falls foul of the Constitution. It acts as an effective and insurmountable impediment to the entitlement in terms of Section 102(2) of members to propose a motion of no confidence in the President, and to have such motion debated and voted upon by the National Assembly. It is conduct inconsistent with the Constitution and therefore invalid under section 2 of the Constitution.

REQUIREMENTS FOR A FINAL INTERDICT

As noted above, I seek final interdictory relief.

The requirements for a final interdict are well established: a clear right, an injury actually committed or reasonably apprehended, and no other satisfactory remedy, that  of similar relief means other than an ordinary remedy. I respectfully submit that I have satisfied all the requirements.

Clear right

For the reasons set out above, I in my personal capacity and as the holder of the mandate by the parties listed in paragraph 5 above have a clear right to have the motion debated and decided upon in the National Assembly under section 102(2) of the Constitution.

An injury reasonably apprehended

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.

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.

No adequate alternative remedy There is no other remedy appropriate for the purposes of giving effect to the right in section 102(2).

URGENCY

The proceedings before the Programme Committee on 15 November 2012 effectively blocked the debate on the motion of no confidence.

These proceedings are being instituted the following day.

The final day of the current sitting of the National Assembly is Thursday 22 November 2012. it next sits in February 2013.

Where opposition parties representing a third of the seats in the National Assembly have proposed the motion, having taken into account the gravity of the motion and its consequences, the National" Assembly must debate and decide the motionas 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.

Parliament must be given the opportunity to decide, by majority vote, whether or not it supports the motion in the course. of next week.  CONCLUSION A court seized with this matter is empowered to grant justiand equitable relief under section 172(1)(b) of the Constitution.

I contend that the relief sought in the Notice of Motion is relief of this nature.

 50. On the basis of what I have set out above, I am entitled to the relief as sought and I therefore pray for an order in accordance with the Notice of Motion.

I LINDIWE DESIRé MAZIBUKO SIGNED AND SWORN TO BEFORE ME AT CAPE. TOWN ON THIS 16th DAY OF NOVEMBER 2012, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THAT HE HAS NO OBJECTION TO TAKING THIS OATH, THAT T HE CONSIDERS THE OATH TO BE BINDING ON HIS CONSCIENCE AND HE UTTERED THE WORDS "I SWEAR THAT THE CONTENTS HEREOF ARE TRUE SO HELP ME GOD".

Transcribed from the PDF. As such there are changes, and may be errors, in the text.

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