ANC Chief Whip Pemmy Majodina led the charge to describe the recent Constitutional Court ruling allowing independents to contest provincial and national elections as “an overreach” at Thursday’s programming committee.

“The judicial overreach – I’m not attacking the judiciary – but sometimes the judiciary overreach. This is a cumbersome process (to amend the Electoral Act)… To give us 24 months to do this process! We can’t be subjected to hurry this and deliver proper results.”

ANC programming whip Chana Pilane-Majeke, who previously served on the justice committee, agreed the judiciary had increasingly “encroached” on Parliament’s work in recent times.

“If there was a logical argument – how unjust it was what was happening, it would make sense.”

Deputy Speaker Lechesa Tsenoli shut this down, saying the Constitutional Court had made its decision, Parliament now had to act and any debate on “our issues (with the courts) is secondary”.

The ANC chief whip’s comments come against the background of a governing ANC that during the Zuma presidency had been sharply critical of the judiciary, calling judges counter-revolutionary. Tensions eased only after a meeting between then-president Jacob Zuma and Chief Justice Mogoeng Mogoeng in August 2015.

But other comments at Thursday’s programming committee meeting also showed how political parties have been touched on their studios by this Constitutional Court judgment. Allowing independent candidates in provincial and national elections, potentially, loosens political parties’ grip on elections.

Freedom Front Plus Chief Whip Corné Mulder described the judgment as “strange” at Thursday’s parliamentary programming committee. The judges should have paid heed to their predecessors’ decision as part of the 1996 certification of the Constitution that political parties are the unit of political life, he said.

Mulder’s question of how Parliament would deal with this legislative amendment landed amid vastly differing input from fellow opposition MPs. African Christian Democratic Party (ACDP) MP Steve Swart came out in support of a wholesale review of the electoral system, including the introduction of some directly elected constituency MPs as outlined in the 2003 report on the Van Zyl Slabbert Commission on Electoral Reform and the 2017 High-Level Panel chaired by former president Kgalema Motlanthe. IFP Chief Whip Narend Singh disagreed, saying all that had to happen was a straightforward amendment of the Electoral Act, alongside consequential amendments to political funding legislation relating to independent candidates.

Initial advice from Parliament’s lawyers on Thursday was that the whole legal system would have to be reviewed.

“The process will require the development of policy and the devising of an electoral system that can accommodate independent candidates… Making provision for independent candidates under the current electoral system is not a matter that can be executed by simply adding the phrase ‘independent candidate’ to wherever the Electoral Act refers to a party,” said the parliamentary legal advice.

It added that considerations would have to include, for example, how ballot papers would be drafted, or what would happen if an independent candidate won sufficient votes to take up more than one seat.

In democratic South Africa, judges have been pedantic in staying away from telling Parliament how to do its job – whether that is on the national legislature’s own rules, from no-confidence motions to secret ballots, or on legislation which has been found invalid and unconstitutional.

But as the judicial authority of South Africa, according to Section 165 of the Constitution, courts must apply the law “impartially, without fear, favour or prejudice”.

Some 14 laws declared in part or wholly unconstitutional are before Parliament, in various stages, for action. And that includes sections of the Divorce Act and the Recognition of Customary Marriages Act prejudicial to women.

Regarding Covid-19, Parliament on Tuesday issued a statement acknowledging it had not been immune — 10 staff have now tested positive. “Of these 10, three have fully recovered, six remain quarantined and fully supported. Previously, Parliament announced the sad passing of one official who succumbed to the virus.”

Thursday’s discussions ended with a firm referral of the matter to the home affairs committee which urgently should be briefed by Home Affairs Minister Aaron Motsoaledi.

The Electoral Commission of South Africa (IEC), which is on public record as being ready to provide any and all “technical assistance” to Parliament, was set to brief MPs on Thursday evening.

“The timing of this judgment, and the parliamentary review of the electoral system it prompts, is opportune given both the maturing of South Africa’s democracy and the looming impact of the Covid-19 pandemic on election processes around the world,” the IEC said in a statement on 11 June.

On other matters constitutional, on Tuesday the House will have to deal with a motion to extend the lifespan of the ad hoc committee to amend Section 25 of the Constitution to expressly allow for land expropriation without compensation.

Covid-19 halted the final rounds of public hearings in two provinces, and other planned work. The ad hoc committee will be given until the end of November 2020 to report back to the House, if the motion is agreed to.

Regarding Covid-19, Parliament on Tuesday issued a statement acknowledging it had not been immune — 10 staff have now tested positive.

“Of these 10, three have fully recovered, six remain quarantined and fully supported. Previously, Parliament announced the sad passing of one official who succumbed to the virus.”

Those affected come from various parliamentary sections, including documents, committees, protection services and the Office of the Acting Secretary to Parliament, according to an official internal memo dated 15 June, seen by Daily Maverick. 

Amid concern in the parliamentary corridors over efforts to ensure workers’ health and safety, Parliament’s statement said the national legislature continued “to intensify its risk-adjusted plan to maintain a Covid-19 safer environment for all Members of Parliament, staff and stakeholders” by measures including access control and daily screening.

The pressure is on — on different fronts.

It includes the Special Adjustment Budget Finance Minister Tito Mboweni tabled on Wednesday.

House Chairperson for Committees Cedric Frolick argued that for committees to properly perform oversight, the traditional July recess and constituency period would have to be reconsidered and rescheduled.

Seven Budget votes had received substantially new funding that would also impact on their strategic and annual plans, Frolick emphasised, as 13 of the 31 Budget votes that lost money, had seen substantial reductions of about half a billion rand.

By late next week, it’ll be finalised whether to agree to the proposal to reschedule the parliamentary programme to run through July so the emergency Covid-19 Budget can be adopted by the end of that month.

Scheduling issues also emerged in the Q&A of Deputy President David “DD” Mabuza, who told MPs there was a clash every time ministers were meant to account to Parliament.

It seems the regular Tuesday standing meeting of the National Coronavirus Command Council (NCCC) hasn’t helped the deputy president to resolve the diary clashes.

The NCCC, Mabuza told DA Chief Whip Natasha Mazzone, had “in no way, shape or form usurped the powers, responsibility or function of any of the three arms of state, including Parliament”.

While the NCCC “is processing on a daily basis the impact, looking at the spread of this virus and recommending certain decisions to Cabinet”, it was still Cabinet that took decisions.

“That means Cabinet is still in charge. Cabinet is accountable in terms of its own work. As members of Cabinet, we are accountable to Parliament in terms of our workings, what we do on a daily basis,” said Mabuza.

“We answer questions to Parliament. We have not abdicated that responsibility.”

On Thursday, as previously, not everyone agreed. DM