Lindiwe Mazibuko, MP v Max Vuyisile Sisulu, MP (Speaker of the National Assembly)

On 8 November 2012, Ms Lindiwe Mazibuko MP, Leader of the Opposition, gave notice of a motion of no confidence in President Jacob Zuma under section 102(2) of the Constitution. The motion was tabled in terms of Rule 98(1)(a) of the National Assembly Rules and placed on the Order Paper for 13 November 2012. Instead of being debated by the Assembly, the motion was referred to the Chief Whip's Forum, which failed to reach consensus. It was then forwarded to the Programme Committee on 15 November 2012, which also deadlocked and failed to schedule the motion for debate. The applicant then approached the High Court for urgent relief directing the Speaker to schedule the motion for debate before 22 November 2012. The High Court dismissed the application, finding that while the applicant had a right to move such a motion and it was inherently urgent, the Speaker lacked power under Rule 2(1) to unilaterally schedule it, and that there was a lacuna in the Rules. The applicant approached the Constitutional Court seeking leave to appeal, direct access for a declaration of constitutional invalidity of the Rules, and a declaration that Parliament had failed to fulfil a constitutional obligation.

• Whether the Speaker has residual power under Rule 2(1) of the National Assembly Rules to schedule a motion of no confidence in the President when the Programme Committee is deadlocked
• Whether the National Assembly Rules are inconsistent with section 102(2) of the Constitution to the extent they do not provide a mechanism for members to enforce the right to have a motion of no confidence scheduled, debated and voted on within a reasonable time
• Whether Parliament has failed to fulfil a constitutional obligation under section 167(4)(e) of the Constitution by failing to schedule a motion of no confidence within a reasonable time
• Whether a motion of no confidence in the President is inherently urgent and must take precedence over all other parliamentary business
• Whether it is in the interests of justice to grant leave to appeal directly to the Constitutional Court and direct access

Leave to appeal granted, but appeal dismissed. Direct access granted. Declaration of constitutional invalidity: Chapter 12 of the National Assembly Rules declared inconsistent with section 102(2) of the Constitution to the extent it does not provide for a political party or member to enforce the right to have a motion of no confidence in the President scheduled for debate and voted on within a reasonable time. Declaration suspended for six months to allow the National Assembly to correct the defect. Applicant ordered to pay costs of the first respondent (Speaker) in the High Court and in relation to the dismissed appeal in the Constitutional Court. Second respondent's (Chief Whip's) application for leave to cross-appeal on costs granted but dismissed. No other order as to costs.

The binding legal principles established are: (1) Section 102(2) of the Constitution creates an entitlement for members of the National Assembly to initiate motions of no confidence in the President and to have such motions debated and voted on by the Assembly without unreasonable delay; (2) Parliamentary Rules made under section 57(1) may regulate the procedure for motions of no confidence but may not deny, frustrate, unreasonably delay or postpone the exercise of this constitutional entitlement; (3) Rule 2(1) of the National Assembly Rules, which empowers the Speaker to frame a rule for eventualities not provided for in the Rules, does not apply to the scheduling of motions as this is already comprehensively regulated by Rules 187-190; (4) The Speaker does not have residual power under Rule 2(1) to unilaterally schedule a motion of no confidence when the Programme Committee is deadlocked; (5) Rules that place the scheduling of motions of no confidence within the discretion of a majority or minority in the Programme Committee, or that create a high risk of such motions being paralyzed, are inconsistent with section 102(2); (6) Motions of no confidence in the President must be accorded priority over other motions and business and must be scheduled, debated and voted on within a reasonable time given the programme of the Assembly; (7) The Assembly's authority under section 57(1) to control its internal arrangements is subject to the overriding requirement of constitutional consistency.

The majority made several significant observations: (1) The right to move a motion of no confidence is perhaps the most important mechanism to hold the executive accountable and interrogate executive performance, and is central to deliberative, multiparty democracy; (2) The ever-present possibility of a motion of no confidence is meant to keep the President accountable to the Assembly which elects the President; (3) Foreign parliamentary practice in India, Canada, the United Kingdom and other Commonwealth jurisdictions recognizes the important function of motions of no confidence in parliamentary democracies; (4) Lobbying, bargaining and negotiating among political parties must be vital features of advancing parliamentary business, but these processes may not render nugatory a constitutional entitlement; (5) The Court expressly refrained from deciding whether the requirements of section 102(2) create a constitutional obligation within the meaning of section 167(4)(e), leaving this for another day. The dissenting judgment observed: (1) Political issues should be resolved at the political level and courts should not be drawn into every political dispute; (2) The alleged defect arose from misapplication of existing Rules (particularly the practice of consensus decision-making contrary to Rule 129 which provides for voting) rather than defects in the Rules themselves; (3) Section 102(2) confers institutional power on the Assembly, not individual rights on members or parties; (4) It is not in the interests of justice for courts to intervene when the competent authority (the Assembly) is already taking steps to remedy the situation through an ongoing rule amendment process; (5) Judicial restraint is required when dealing with matters in the heartland of Parliament's domain, consistent with separation of powers; (6) Scarce judicial resources should not be spent on matters already being addressed by the competent authority.

This case is of fundamental importance to South African constitutional democracy as it clarifies the mechanisms for parliamentary accountability of the executive through motions of no confidence. The judgment affirms that section 102(2) creates an entitlement for members of the National Assembly to initiate motions of no confidence in the President, and that this entitlement is central to the separation of powers, checks and balances, and the Assembly's constitutional duty to scrutinize and oversee executive action under section 42(3). The Court held that parliamentary rules may regulate but not deny, frustrate, unreasonably delay or postpone the exercise of this constitutional entitlement. While the Assembly has authority under section 57(1) to determine its internal arrangements and procedures, this authority is subject to constitutional constraints. The case establishes that motions of no confidence must be accorded priority and dealt with within a reasonable time, though not necessarily with absolute urgency over all other business. It also illustrates the limits of judicial intervention in parliamentary processes, with the majority nevertheless finding it necessary to declare deficient rules invalid while the minority advocated greater restraint given ongoing parliamentary reform processes.