Today (Thursday 28 March 2013) marks the start of the Constitutional Court case brought by the Democratic Alliance and others against the Speaker of the National Assembly (NA) and others. The Chief Whip of the Majority Party in Parliament (ANC) is the second respondent.

The case involves the motion of no confidence against the President of the Republic, proposed in the National Assembly by the DA and 7 other opposition parties in November last year. It was decided by the NA Programming Committee (NAPC) that the matter could not be tabled in the NA, due to time constraints. The DA alleged at the time that the ANC thwarted the tabling of the motion because they were scared that ANC MPs would vote in favour of the motion, as "many ANC MPs have expressed their dissatisfaction with Zuma's leadership style."

Personally I do not know which ANC MPs they are talking about, because I talk to ANC MPs on a daily basis, and although they are not always happy with certain things, I know of no single member who would vote in favour of such a drastic motion. Even though the DA's motion called for a secret ballot on the motion, ANC MPs would still not vote in favour, basically on principle.

The fourth quarter of any year is usually the shortest, and in Parliament, this is the time that we deal with due business, some of which had been scheduled months in advance. There are often legislation that had been introduced earlier in the year, and because of the legislative process, have to be adopted by the House before the year calender ends. Failure to adopt such legislation or any other matter would mean that it would lapse at the end of the year, and has to be revived at the beginning of the new year. In some such cases, this means that the process conducted during the year has to be repeated, bringing with it a total waste of money and other resources.

The DA; and all other opposition parties represented in parliament; knows that it is very difficult to schedule a debate of this magnitude in less than a month. By the time they have proposed the debate, there was less than three weeks left on the programme. And the programme was packed, even on the last sitting day of the House, members left the Assembly late in the afternoon, stretching into the night.

Currently the ANC has 264 members in the 400 seat NA. A debate like this would require a simple majority for success or defeat. The Constitution of South Africa, Section 102(1) states that the Assembly shall vote on a motion of no confidence in the President and has to pass a vote by majority. This means that 201 members would have to vote in favour or against the motion. The Rules of the NA also makes provision for this.

So, to allege that the ANC is scared of debating this issue, is absolute rubbish. What would happen is that the ANC would allow the opposition parties to posture and politick, the party would reply and call for a vote, and using its majority status, just simply outvote all other parties. That would be the end of this round; and we would be awaiting the next opposition tactic against the President, which is basically what this is all about.

The ANC argued last year, that the motion is not that urgent, and could await the new programme for 2013. The DA countered that the motion would lapse at the end of the year. ANC Chief Whip, Mathole Motshekga, even offered to argue himself for the revival of the motion in the new year. The ANC never argued against the legality or ethics of the debate, our argument was simply that time does not allow for this motion to be scheduled for debate in the House in the remainder of 2012.

The DA and others than decided to approach the Western Cape High Court, to petition the Court to force Parliament to schedule the debate before the NA rise for the year. The Court, however, found that the doctrine of separation of powers, in this instance, mean that the Court (judiciary) cannot prescribe to Parliament (legislature) how to handle its internal business. Here its worth mentioning that the judge was speaking in terms of a doctrine established and protected by the Constitution itself.

In a previous post, I spoke about the principle of the interaction and relation between, and the protocol of the interdependence of the 3 arms of the State. Whilst we have not yet determine what exactly this relationship entails, one thing is extremely clear: we do know where the lines are to be drawn as far as separation of powers are concerned. In 2006 the Constitutional Court ruled on an application brought against the Minister of Home Affairs about the Marriages Act, which declares that "marriage is a union between one man and one woman."

The plaintiff in this case argues that the equality clause in the Constitution should be extended to include marriage, or some reasonable facsimile thereof, to include a union between two people of the same sex. This lead to the Court issuing an order against the Minister, to start proceedings to introduce in Parliament legislation that would give effect to homosexual couples being officially recognised in the same terms as an ordinary marriage, as espoused by the Marriages Act. The Court gave Parliament until November 2007 to pass the legislation, failure to do so would lead to the Court forcing a law upon the legislature.

Parliament passed the the Civil Union Bill with one day to spare, and the next year the President ascended to it. Should the Court have forced a law upon Parliament, it would have set a very bad and dangerous precedent, whereby powers conferred on one arm of the State by the Constitution, would have been exercised by another arm of the State. This would further have meant that the moment the Court is not happy about something in the law, it would simply force Parliament to either adopt a law or amend an existing law. This is the principle accepted by the Western Cape High Court last year in the DA application.

As long as Parliament operates within the framework of the Constitution, and its own Rules, no other arm of the State should have the right to interfere.

After losing in the High Court, the DA approached the Constitutional Court with an application to force Parliament to have the no confidence debate placed urgently on the Parliamentary programme. In a majority judgment, eight Constitutional Court justices concurred that there is no urgency in the matter and it set the case to start today.

On 07 February this year the NAPC held its first meeting of the year. During that meeting, the DA was asked about revival of the motion. DA Chief Whip, Watty Watson informed the meeting that the DA is withdrawing the motion in total, pending the outcome of the case in the ConCourt. This despite assurances of ANC support for the motion to be debated in the House. If indeed, the motion was as urgent as they alleged last year, why withdraw it? Im sure that, given the brevity of the Programme, we would have found space to debate it in the first quarter of this year. But all of a sudden, the motion seemed to have lost its urgency.

I don't think the DA and others are really that serious about this motion, especially seeing that the President has won a second term at the Mangaung Conference. Please note: Jacob Zuma did not steal the elections, he did not con anyone; he was democratically elected by a substantial majority of ANC members at the Conference. That should have reinforced his leadership. I don't think that the Court is going to find in their favour either. Given the heads of argument by the Speaker and the Chief Whip, the Court cannot fault the process followed by the National Assembly, as it is prescribed in both the Constitution and the NA Rules.

The DA would have done much better had they approached their warrior queen, Public Protector Thuli Madonsela. This seems to be the only arena where they have a chance of winning anything.

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