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After the Bell: Why the MK party’s political plans have a low probability of legal success

After the Bell: Why the MK party’s political plans have a low probability of legal success
Illustrative image: SA Parliament. (Photo: Gallo images) | Former president and current uMkhonto Wesizwe (MK) party leader Jacob Zuma. (Photo: Michele Spatari / AFP)

Last week, I wrote about some of the legal and political aspects of SA’s election impasse that were not being considered. I got some really interesting responses, many from legal practitioners much more familiar with constitutional law than I am, and I would like to pass them on.

One of the issues I raised was Section 46(1) of the Constitution, which says: “The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system…”

As if by clockwork, the MK party released a statement on Monday morning saying it intended to interdict the convening of the inaugural session of Parliament. 

In its statement, it says, “Legally, the absence of MK party members will prevent achieving the composition of the 350 members required to lawfully constitute the National Assembly, further invalidating the session which aims to appoint a President and therefore the government of the country.” 

In response, the chief legal adviser for Parliament, Adv Zuraya Adhikarie, said she did not agree with MK’s interpretation and that she was of the view that “the Secretary to Parliament is legally bound to facilitate the first sitting of Parliament at a date and time to be determined by the Chief Justice. Accordingly, unless and until the results of the election are set aside by a court under S49(3) of the Constitution, Parliament must ensure that the sittings take place as directed.”

So, who is right here? Legal eagles have persuaded me that Adhikarie is probably right. 

What the MK party has overlooked, so I am told, is that the National Assembly has already been constituted. It was constituted when 400 people were elected to be its members.  

The 51 MK candidates on their list are already members of the National Assembly.  They became members when they were elected, and they were officially elected when the IEC declared the official election results.  

So, there is already a National Assembly of 400 elected members. The members have just not yet assembled for their first sitting, which must occur within 14 days.  

The only problem, if there is a problem, is that the 400 members do not yet have the power to perform their functions, and that is where section 48 comes in.  

Before the members can perform their functions, they must swear an oath or make an affirmation that they will be faithful to the Constitution. Having done so, they are entitled – indeed, they are obliged – to proceed to perform their functions, the first of which is to elect a President and a Speaker.

But what if all 51 of MK’s elected members simply don’t pitch up? Or, if they do pitch up, but refuse to take the oath, which seems likely since the oath requires fealty to the Constitution and the MK party manifesto states that the party seeks to rip up the Constitution?

Well then, I am told, the remainder of the elected members, who have sworn or affirmed their fealty to the Constitution, get on with their job.  

The Constitution does not compel the elected members to turn up or to swear or affirm fealty to the Constitution. It just means they may not cast a vote until and unless they do so.

The legal eagles say it’s easiest to think about the process this way: consider what would happen if, on their way to the inaugural parliamentary session, one of the elected MPs has a car accident and has to go to hospital. Does that mean the rest of the members are not able to take their seats and get on with the job? Clearly not – that would be absurd, and the Constitution is not absurd.  

By extension, the same applies even if 51 members are in a bus that breaks down. As long as a third of the elected members are present, there is a quorum (S53(1)(b), and the show goes on. The President will be elected by a simple majority of the members of the National Assembly present (S53(1)(c).

The other claim made by MK is that the party is “confident and resolute in ensuring that the re-run of elections will take place within three months as per section 49(3) of the Constitution, once the sham of the election results have been set aside by the court”. 

How likely is that? The short answer is, not very. 

Of course, MK can and has already indicated it intends court action alleging that the election was a “sham” but, importantly, so I am told, the commencement of court proceedings does not halt the proceedings. 

Perhaps the court will nullify the election, in which case there must be another election in 90 days, but how likely is that? MK has yet to tell us on what grounds they say the election was a sham.   

In my column last week, I suggested that the ANC might actually welcome the idea of an election do-over, partly because it would likely draw out ANC supporters who didn’t vote. Technically, the party could support a legal action to overturn the election.  

But if the election is not overturned, the National Assembly cannot dissolve itself in less than three years. So, there is no way the ANC – or anyone else for that matter – could force an election re-run.  

In Adhikarie’s response to MK’s letter, there was a bit of edge. 

She noted that the parliamentary administration usually ensures that all members on the IEC list who are elected are provided with travel and accommodation to attend the sittings. However, given MK’s decision to boycott the sitting, “we will instruct the officials to cancel all arrangements in respect of accommodation and flights for your client’s elected members so as not to incur fruitless and wasteful expenditure in contravention of the Financial Management of Parliament and Provincial Legislatures Act, 2009”. 

So, cutlasses are drawn. 

I hope that clears up to some extent my suggestions about the things that were not being considered over the weekend. DM

Gallery

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