When President Cyril Ramaphosa gave his August 2021 tranche of evidence, it emerged at the Zondo Commission hearings that the decision to propose Nosiviwe Mapisa-Nqakula as the ANC candidate for Speaker of the National Assembly was not taken by its caucus in Parliament, as it should have been, but by its apparatchiks in Luthuli House. Democratic centralism apparently allows this sort of abuse of parliamentary power and the ANC caucus takes it lying down every time.
With Ramaphosa enthusiastically endorsing and explaining the unconstitutional notion of democratic centralism during his evidence at the commission, it is no surprise that Parliament has been rendered toothless and has proved itself incapable of exercising oversight over the executive branch of government, one of its main functions under the Constitution. Any supreme Constitution ought not to countenance any interference in the proper functioning of Parliament. In South Africa, that interference is the order of the day due to the ravages of the National Democratic Revolution, which motivates the actions of the ANC.
According to the official South African parliamentary website, great emphasis is placed on the impartiality of the Speaker, as appears from the Institutional Mandate section:
“As the leader of the House, the Speaker has the responsibility to:
- Provide political leadership & strategic direction to the House;
- Exercise impartiality at all times in pursuance of these duties.
“The impartiality of the Speaker is one of the prime values the integrity of the South African Parliament is measured in terms of. The Speaker therefore has the responsibility of:
- Being the custodian of this integrity;
- Preserving parliamentary integrity;
- The decorum of the members of the House consequently;
- Serving as the Executive Authority for the House;
- Ensuring the smooth running of the House business and its Committees;
- Ensuring the development and management of the House programme; and
- Impartially presides over House meetings and maintaining order, and chairs the strategic parliamentary committee, together with the NCOP Chairperson jointly presiding over joint sittings.
“The Speaker and the Chairperson of the NCOP jointly preside over, provide political leadership and ensure the development of the annual joint parliamentary programme framework for the following structures:
- Joint Programme Committee;
- Joint Rules Committee;
- Executive Committee;
- Presiding Officers’ Forum;
- Budget Committee; and
- Forum of the legislative sector called Speakers’ Forum.
“The Speaker’s Forum is a national structure made up of the Speaker and the Deputy Speaker of the National Assembly, the Chairperson and Deputy Chairperson of the NCOP; and the Speakers and Deputies from the Provincial Legislatures.
“As the leader of the National Assembly, the Speaker presides over the meetings of and provides leadership on:
- Programme Committee; and
- Rules Committee of the National Assembly.”
Quite obviously the constitutionally mandated oversight role of Parliament is in danger of being stymied if a recent and controversial member of the executive, over which the oversight must be exercised, is made Speaker. Such a move would be an abomination, especially at a time when the executive has failed the nation so spectacularly that parliamentary inquiries into the snafus of July 2021 are pending. So too are Zondo Commission recommendations that will surely end cadre deployment in the public administration and state-owned enterprises, a pernicious practice if ever there was one.
The candidate, Mapisa-Nqakula, due to her political connections, has avoided criminal prosecutions in the Travelgate debacle, in relation to spiriting her son’s foreign girlfriend into the country illegally, concerning her alleged receipt of a R5-million bribe and in relation to allowing an ANC delegation to hitchhike to Zimbabwe on an official military flight as if there is no distinction between party and state.
She is unmanageably conflicted when it comes to leading the parliamentary oversight of the executive, having been a member of it so recently. Her ability to be impartial in setting up the committee activity needed to exercise oversight properly is completely compromised. Her binding code of ethics as a member of the executive does not end the minute she is dropped from Cabinet. Springboards and revolving doors are not kosher in our Constitution. On the contrary, section 96(2)(b) of the Constitution obliges her to avoid conflicts of interest. She “may not act in any way that is inconsistent with her office or expose herself to any situation involving the risk of a conflict between her official responsibilities and private interests”.
The term ‘any situation’ is sufficiently broad to preclude her from making herself available for the post of Speaker, given the requirements of the executive code of ethics, the provisions of section 96 of the Constitution and the impartiality expected of the Speaker as set out officially in the extract quoted above.
In addition, Mapisa-Nqakula is married to a presidential special adviser, Charles Nqakula, a fact which implies the risk of multiple conflicts of interest between their official responsibilities and private interests in maintaining their marriage. The separation of powers between executive and legislative branches of government would risk being compromised by their relationship.
Mapisa-Nqakula’s position is, in principle, no different from that in which Menzi Simelane found himself when former president Jacob Zuma appointed him to lead the National Prosecuting Authority. The Constitutional Court found that it was irrational to appoint a cadre, known to have lied on oath, to the independent office of the National Director of Public Prosecutions. His appointment was set aside as invalid at the instance of the DA because his mendacity rendered him unsuitable.
It is also unplayable for Mapisa-Nqakula that she believes that the troubles of early July are a “counter-revolution”. Think about it. There has been no revolution in South Africa, only a peaceful transition from parliamentary sovereignty to constitutional democracy under the rule of law. This bold step took place not because of a revolution but actually in terms of a National Accord which was negotiated by representatives of the vast majority of South Africans. Mapisa-Nqakula’s oath of office obliges her to uphold the Constitution, not foment a revolution or deal with imagined counter-revolutionaries.
It is delusional to believe that a counter-revolution is being fomented in South Africa at present as no revolution has taken place. If Mapisa-Nqakula regards herself as a revolutionary, she is unable to take the oath of office required because her revolutionary stance is one that is aimed at overturning the constitutional order that is in place.
As the ANC’s candidate, Mapisa-Nqakula is not a fit and proper person for the post of Speaker for all of the reasons raised in the press release of the Chief Whip of the DA and also for the reasons set out by Professor Pierre de Vos in his Opinionista of 12 August 2021 in Daily Maverick.
It would be irrational and contrary to the rule of law to appoint her. The ANC needs to be put on terms by the opposition to drop her as a candidate or face litigation of the same kind that saw Simelane unseated due to the irrationality of his appointment.
Some may argue that the bar in respect of the rationality of decision-making is set so low that even Mapisa-Nqakula will, despite her manifest shortcomings and obvious conflicts, be able to clear it. The law on the topic has been spelt out by the Constitutional Court.
It is a component of the principle of legality that governmental conduct must not be arbitrary. In other words, all governmental conduct must be rationally connected to a legitimate governmental purpose, failing which it will be arbitrary and hence unconstitutional.
In 1999, in New National Party of South Africa v Government of the Republic of South Africa, Justice Zak Yacoob explained this as follows:
“The first of the constitutional constraints placed upon Parliament is that there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose. Parliament cannot act capriciously or arbitrarily. The absence of such a rational connection will result in the measure being unconstitutional. An objector who challenges the electoral scheme on these grounds bears the onus of establishing the absence of a legitimate government purpose, or the absence of a rational relationship between the measure and that purpose.”
The Constitutional Court made the same point in the Pharmaceutical Manufacturers case:
“ It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.
“ The question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. Otherwise a decision that, viewed objectively, is in fact irrational, might pass muster simply because the person who took it mistakenly and in good faith believed it to be rational. Such a conclusion would place form above substance, and undermine an important constitutional principle.”
The point was also made in pithy terms in Prinsloo’s case:
“The constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional State.”
It follows that Parliament’s conduct will be unconstitutional if it is not rationally connected to a legitimate governmental purpose. This is the very bedrock of our new constitutional dispensation. The purpose of electing a new Speaker is to appoint a fit and proper person of known and impeccable integrity who is capable of impartially fulfilling the duties and functions of leadership of the National Assembly.
Objectively speaking, Nosiviwe Mapisa-Nqakula is not such a person.
If the processes of democratic centralism (in and of themselves unconstitutional) are treated as mere advice or a “recommendation” from Luthuli House to the members of the ANC caucus in Parliament, it is their constitutional duty to reject the recommendation and instead support a candidate who does measure up to the standards of the law.
Any failure to do so may lead to litigation, adverse costs awards and the disruption of the work of Parliament in a year in which the July riots and the forthcoming recommendations of the Zondo Commission are going to have to be dealt with by Parliament as matters of urgency. DM