NEWS ANALYSIS
The constitutional court this week cut short uMkhonto weSizwe (MK) party’s legal tilt at derailing the first sitting of the National Assembly and forcing fresh elections.
The party filed papers on Tuesday, and the court dismissed the application as meritless a day later, noting that no evidence was adduced to make out a prima facie case of election-rigging.
In the founding affidavit, Sihle Ngubane, the secretary general of the MK party, had argued that the elections “were anything but free and fair” and alluded to evidence of irregularities in his party’s possession but said no purpose would be served by including it in its founding papers.
“The application must fail on its merits,” the court said, adding that the party has misconstrued the constitutional provisions on which it sought to rely.
“In addition the applicant has also not adduced facts to establish a prima facie case in respect of the relief it will seek in the main application.”
It said the urgency Ngubane claimed was self-created as the actions of the Electoral Commission of South Africa the party impugned — the dismissal of electoral objections and the announcement of the results — happened on 1 and 2 June.
“However, despite this knowledge, the applicant only launched the application on 10 June.
“The applicant has failed to show any justification for not bringing this application sooner when it was aware of the constitutional requirement to convene the National Assembly no later than 14 days after the declaration of the election results. The urgency is thus self-created.”
The ruling went as legal minds predicted before the application was filed.
The party, in a letter to parliament last week, set out the reasoning for its claim that by boycotting the inaugural sitting of the National Assembly it would rob the chamber of legal standing to elect a new president.
Parliament was unmoved because this relied on a misreading of chapter 4 of the Constitution.
In a letter sent to Chief Justice Raymond Zondo and the secretary of parliament, the MK party’s lawyer, Nqobile Zungu, argued that the National Assembly would not be properly constituted if fewer than 350 MPs were present.
“This will mean that the National Assembly will not have the requisite minimum number of 350 sworn in members to constitute it, a question which is totally different to the quorum required for a properly constituted National Assembly,” he said.
This refers to section 46 (1) of the Constitution, which says that the National Assembly “consists of no fewer than 350 and no more than 400 women and men elected as members”.
Parliament, in a statement, simply said it “does not agree with the MK party’s interpretation of section 46 of the Constitution”.
The legislature’s chief legal adviser, Zuraya Adhikarie, replied to Zungu’s letter of demand by saying the sitting would proceed in the absence of its 58 members elected to the assembly and parliament would cancel their travel allowance to prevent wasteful expenditure.
Her advice to the party was anchored in the fact that in terms of the Constitution, an ordinary quorum is required to elect the president, the speaker and the deputy speaker of the house. Section 53(1) says a majority of members must be present before the assembly can vote on a bill or an amendment to a bill.
Section 53(1)(b) then states: “At least one third of the members must be present before a vote may be taken on any other question before the assembly.”
This applies to the election of the president — plus the two presiding officers — and therefore the MK party’s absence may yet make it easier for the ANC to have President Cyril Ramaphosa elected for another term despite the loss of its outright majority in last month’s poll.
Section 86 of the Constitution, which deals with the election of the president by the assembly, does not distinguish this process from votes on other questions as referred to section 53 (1)(b) requiring that a minimum of a third of members be present.
The drafters of the Constitution deliberately ensured that a minority of petulant MPs could not obstruct the formation and functioning of government after the country emerged from racist minority rule, said a lawyer who asked not be quoted.
“They had the advice of the best international and local experts and they deliberately did not leave room for a scenario where a minority of something like 12.5% of elected MPs could bring the government to a standstill,” he said. “If that was a possibility, it would have happened long ago.”
MPs who wanted to subvert the transition to majority rule in 1994 may well have tried it, he said. Or more recently, the opposition could have used the same calculation to block the chamber’s election of Jacob Zuma, now the MK party leader, as president.
Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution, said Zungu’s argument was “nonsense” in that its members became MPs once it was confirmed that the party had won 58 seats in the National Assembly.
“You become an MP when you are elected.”
Section 48 of the Constitution merely stipulates that they cannot perform any functions until they have been duly sworn in. Nor, a parliamentary source said, can they draw salaries until this has happened.
It 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.”
Naidoo said in the absence of a ruling setting aside the election results, no court would interdict parliament from sitting within a fortnight of the announcement of the election results.
It did not stop the MK party from arguing that Zondo acted unlawfully by complying with this constitutional provision. It accused him of prejudice and said this would “compromise the impartiality required when this matter ends up in court as it will”.
Zondo recused himself from the panel that ruled on its application.
*This article has been updated