• In addition, the Chief Whip sought leave to cross-appeal against the two findings in the reasoning of the High Court. There is no justification for granting the Chief Whip leave to cross-appeal on this basis. An appeal of that kind is incompetent in law. The Chief Whip does not impugn the dismissal order of the High Court.
Although it was granted for reasons different to those he advanced before the High Court, the Chief Whip supports the order. Thus, his cross-appeal is not directed at reversing or changing the order of the High Court but at altering or discrediting a part of its reasoning without targeting or seeking to reverse its order. • The cross-appeal has no merit and must be refused. Order • The following order is made: 1. The applicant’s application for leave to appeal is granted. The appeal is dismissed. The applicant’s application for direct access is granted.
It is declared that Chapter 12 of the Rules of the National Assembly is inconsistent with section 102(2) of the Constitution to the extent that it does not provide for a political party represented in, or a member of, the National Assembly to enforce the right to exercise the power to have a motion of no confidence in the President scheduled for a debate and voted upon in the National Assembly within a reasonable time, or at all. The declaration of constitutional invalidity in paragraph 4 above is suspended for a period of six months, to allow the National Assembly to correct the defect. The first respondent’s application for leave to cross-appeal on costs is granted and the cross-appeal is upheld. The applicant is directed to pay the costs of the first respondent in the High Court, and in this Court only in relation to the applicant’s dismissed appeal. The second respondent’s application for leave to cross-appeal is granted only in respect of costs, but the appeal is dismissed.
Save for paragraph 7 above, no order as to costs is made. JAFTA J (Mogoeng CJ, Mhlantla AJ and Zondo J concurring): Introduction • Political issues must be resolved at a political level.
Our courts should not be drawn into political disputes, the resolution of which falls appropriately within the domain of other fora established in terms of the Constitution. A timely warning was issued in this case by Davis J in a judgment delivered by the High Court. He cautioned: “ There is a danger in South Africa, however, of the politicisation of the judiciary, drawing the judiciary into every and all political disputes as if there is no other forum to deal with a political impasse relating to policy or disputes which clearly carry polycentric consequences beyond the scope of adjudication.
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In the context of this dispute, judges cannot be expected to dictate to Parliament when and how it should arrange its precise order of business matters. What courts can do, however, is to say to Parliament: ‘you must operate within a constitutionally compatible framework; you must give content to section 102 of the Constitution; you cannot subvert this expressly formulated idea of a motion of no confidence. However, how you allow that right to be vindicated is for you to do, not for the courts to so determine’.” • What happened in this case provides evidence that supports the observation made by the High Court. A simple process of tabling a motion for consideration in the Assembly has triggered striking errors and ineptitude arising from the misinterpretation and misapplication of the Rules. As illustrated later in this judgment, the Rules give a right to every member to table motions in the Assembly. Acting in terms of the relevant Rule, the applicant tabled a motion of no confidence in the President.
Consistent with that Rule, the motion was put on the Assembly’s agenda by placing it on the Order Paper. But instead of debating and voting on the motion, the Assembly referred it to the Programme Committee for that Committee to place the matter on the Assembly’s agenda in circumstances where the motion was already on the agenda of the Assembly.
• This decision set in motion a series of errors. Without explanation, the matter was not referred to the Programme Committee but was first submitted to the Chief Whips’ Forum which failed to reach consensus. It was then forwarded to the Programme Committee whose majority membership comes from the opposition parties on whose behalf these proceedings were instituted. On the day the matter was considered by the Committee, some members coming from the opposition parties did not attend, even though their parties felt strongly about the motion. As a result the majority of members present were from the ruling party.
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