Mazibuko, MP v Sisulu, MP and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 115/12 Western Cape High Court, 22 Nov. 2012 28 Mar. 2013
27 Aug. 2013 Moseneke DCJ  6-4

By Duncan Wild on 27 August 2013

The issue in this case is whether section 102(2) of the Constitution provides a minority of members in the National Assembly with a right to bring a motion of no confidence in the President, and if so whether the Rules of the National Assembly fail to give effect to that right.

This case was brought by Ms Lindiwe Mazibuko acting in her capacity as leader of the opposition in the National Assembly under section 57(2) of the Constitution.  On 8 November 2012, Ms Mazibuko gave notice of her intention to move a motion of no confidence in the President, in terms of section 102(2) of the Constitution.  After various internal processes occurred, the Speaker of Parliament determined that the motion could not be tabled for debate. 

Ms Mazibuko then brought an urgent application before the Western Cape High Court to compel the Speaker to table to the motion for debate.  The High Court (Davis J) held that section 102(2) provided a right to any member to bring a motion of no confidence for debate in the National Assembly, and that such a motion was inherently urgent.  However, the Rules of the National Assembly determined that decisions are made by a majority vote in a National Assembly committee meeting, including the Programme Committee, and this would permit the majority to block the debate of a motion of no confidence, which frustrated the right to bring a motion of no confidence provided by section 102(2).  Nevertheless, in the absence of a rule empowering the Speaker to schedule a debate, the High Court could not write its own rules for the National Assembly and order that such a debate be scheduled.  The High Court concluded that only the Constitutional Court has jurisdiction to determine whether Parliament has failed to fulfil a constitutional obligation.

The Constitutional Court, in a majority judgment authored by Deputy Chief Justice Moseneke (Justices Froneman, Khampepe, Nkabinde, Skweyiya and Van der Westhuizen) found that section 102(2) of the Constitution grants members of the National Assembly the right to give notice of and have a motion of no confidence tabled and voted on in a reasonable time. To the extent the rules of the National Assembly did not provide for this, they were found to be inconsistent with the Constitution and invalid.  The Constitutional Court suspended its order of invalidity for six months to allow the National Assembly to correct the rules.

The Constitutional Court agreed with the High Court that under the rules the Speaker has no residual power to schedule a motion of no confidence in the President for debate and vote, and therefore could not be ordered to do so.  The Constitutional Court therefore dismissed Ms Mazibuko’s appeal against this aspect of the High Court’s order.

The Constitutional Court also found that as Ms Mazibuko had not been successful in the High Court or Constitutional Court on this aspect, it should be ordered to pay the the respondent’s costs in so far as they relate to this aspect of the case.

Justice Jafta wrote a minority judgment (Chief Justice Mogoeng, Acting Justice Mhlantla and Justice Zondo concurring) in which he argued that direct access to the Constitutional Court should not have been granted.  In this case, where the National Assembly had already begun amending its rules, it was not in the interests of justice to grant direct access.  Bearing in mind the doctrine of separation of powers, there was not sufficient justification in this case to interfere in the domain of Parliament.

Download the judgment here.

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