PALI LEHOHLA | The first sitting of parliament may have been null and void — if only the law were clearer

Once upon a time the murder case of Oscar Pistorius the blade runner presided by judge Thokoza Masipa left tongues wagging with the legal term, dolus eventualis.

The results of the May 29 polls were not only out of the ordinary, they caused an engagement with the constitution among some of us. The result was unexpected but unsurprising. It led to a sombre search for love out of a pool of acrimony. That being the case, some not attending the first sitting of parliament to perform the critical step of electing a president, speaker and deputy speaker added to the sombre mood.

Ntate Thozamile Botha, no stranger to parliamentary processes and local government, could not conceal his well thought through concerns which he shared online. The concern was the less than 350 attendance of MPs at the swearing in. The response to his concern was largely that the judiciary and the secretary of parliament would not engage in illegality. While that remained possibly true, that the matter could not be visibly clear in the constitution was certainly at stake.

So when I saw what he posted, I did not sleep. For the first time I referred to the clauses of the constitution that deal with how parliament is constituted after an election. I read sections 46 and 48. To my understanding these two sections set the parameters and the sequence of how the National Assembly is constituted. First is section 46, which says the National Assembly consists of 350 to 400 members. Second, they must take an oath or affirmation per section 48, which reads: “Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the constitution, in accordance with schedule.”

The question uppermost in the exchange was, why is section 46 specific on the number 350-400 membership to explicitly quantify the boundaries of the National Assembly? And if 350-400 is superfluous, then why should section 46 serve any purpose, and why should it not be expunged?

These uncharted waters prompted Botha to post on the WhatsApp group: “The Opening of Parliament on the 14 June 2024 potentially ‘Null and Void’.” He proceeded to outline the content of the constitution that deals with how the National Assembly is formed after an election.

Section 46 (1): “The National Assembly consists of no less than 350 and no more than 400 women and men elected as members in terms of electoral system ... Therefore, the one third referred to in section 53 (1)(b) assumes that parliament has been properly constituted in terms of section 46 wherein the minimum number of 350 of members must have been present in the House before a vote is passed by one third.”

The sitting on Friday may have been predicated on an assumption that MKP would be split and those who were following Khumalo would attend and be sworn in to constitute the minimum requisite 350 members. However, that assumption or expectation was wrong.

If I am correct, he argued, in my reading of the constitution that the swearing in of members and the election of the speaker of the National Assembly may have been premature and by extension Friday’s activities a non-event, all decisions taken are null and void.

The decision of the ANC to form a coalition with the DA to the exclusion of MKP and other smaller black parties has exacerbated a political environment which was not in its favour anyway.

In terms of political expediency, the ANC’s decision to prefer the DA over other black political parties may be momentarily correct, but it is publicly perceived as abandoning its traditional constituency. The error the ANC is making is judging the current political environment through the prism of Jacob Zuma and not the mood of the people on the ground, including KwaZulu-Natal. It has not sufficiently considered the possibility of national re-election, in which case it might lose significant votes from the current support. This is the risk the ANC runs. It is most likely the DA might lose some of its black voters, but the biggest loser would be the ANC and the beneficiary is likely to be MKP. This is the most undesirable outcome.

My advice is that the ANC leadership must do everything possible to avoid going to re-election. It must find a reasonable compromise to stay in government in the interest of the country. If it is serious about the GNU, it must at all costs be an inclusive and representative of this country. It must stop treating the DA as if it is an angel. I am not opposed to the GNU, which includes the other political parties that recognise the votes a party acquired. That would mean there has to be a set of minimum principles and policy guidelines acceptable to other parties.

“The ANC must accept that it has lost its majority in parliament and must not act as though it is still in the majority. It has to be prepared to give and take,” Botha concluded.

Ntate Matsapola Maroba was short and dismissive of the concern that Botha had raised, writing: “This is a patently gross misinterpretation of the plain provisions of both the constitution and the laws and rules of parliament. It is a pathetic ‘creative’ manoeuvring that sore losers’ bands to use as a measure to disrupt our young democracy. THIS WON'T WORK!”

Quite clearly the arguments laid out by Botha were met with a politically laden response, which later included a more considerate argument from Maroba.

Ntate Xolani Qubeka wrote: “Ntate Lehohla, were you able to listen to the interview by the Secretary of Parliament with the SABC that provides more information regarding the whole matter of quorum? It assisted me in gaining a better understanding of why the sitting quorated yesterday. In essence there are constitutional provisions that should be read with the provisions Ntate Botha shared. So, with parliament and the chief justice knowing and understanding how litigious JZ is, they would have satisfied themselves of not finding themselves exposed to litigation. Please try listening.”

I responded: “Ntate XQ, thanks a lot. I listened and after listening, I am unable to satisfy myself with section 46, section 48 and section 53. While I appreciate the assurance and no doubt those vested are better equipped in reading and implementing the law, the evidence before me from the three sections do not display the evidential basis of the arguments made. I am still left quite 'cold' in this heat of this contestation.”

Matsapola came back with a longer version that introduced circumstantial cause and was quite helpful. But I was still not convinced. He further stated: “Fortunately, you are not sure and still seek clarity on the matter. On my side, the CJ would not have proceeded in the manner that he did if questions about quorum loomed. Even as he was composing the rules for the sittings, he was fully aware that the MKP was going to boycott the sitting. The Secretary of Parliament, a legal mind himself, having consulted widely on the matter, concluded consistent with my opinion and that of the chief judge. If he cancelled the arrangements for the boycotting bunch for fear that not cancelling the arrangements would be wasteful expenditures, why would he allow the immense expenditures of the inaugural sitting if there were doubts about issues surrounding a quorum? I am certain that there is no interpretation of the provisions you cite that would reasonably support your observations and query.”

The engagement above suggests that the sections in the constitution need to be clearer on the allotment of members to be parliamentarians and the swearing in of parliamentarians. Left as is, sections 46 and 48 confuse the reader. Botha’s elaborate intervention brought the matter into sharp relief and lawmakers should look into it with the specific intention of clarifying the procedural interface.

Dr Pali Lehohla is a Professor of Practice at the University of Johannesburg, a Research Associate at Oxford University, a board member of Institute for Economic Justice at Wits and a distinguished Alumni of the University of Ghana. He is the former Statistician-General of South Africa