Abstract
In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future.
 This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA.
 The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine.
Highlights
In United Democratic Movement v Speaker of the National Assembly,1 the Constitutional Court handed down the following order: ʺThe Speaker's decision of 6 April 2017 that she does not have the power to prescribe that voting in the motion of no confidence in the President be conducted by secret ballot is set aside.ʺ This is not the first time a decision of the Speaker of the National Assembly has been reviewed and set aside.2 in UDM the Court set aside the Speaker's decision but it set out a framework within which the Speaker will arguably have to make future decisions regarding the manner of voting in a motion of no confidence
This note considers the law governing the review of the Speaker's decisions and finds that the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA
The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated
Summary
In United Democratic Movement v Speaker of the National Assembly (hereafter UDM), the Constitutional Court handed down the following order: ʺThe Speaker's decision of 6 April 2017 that she does not have the power to prescribe that voting in the motion of no confidence in the President be conducted by secret ballot is set aside.ʺ This is not the first time a decision of the Speaker of the National Assembly has been reviewed and set aside. in UDM the Court set aside the Speaker's decision but it set out a framework within which the Speaker will arguably have to make future decisions regarding the manner of voting in a motion of no confidence. The UDM decision deals with the National Assembly's obligation to hold the President and the Executive authority accountable in terms of section 102 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) This decision concerns the role of the Constitutional Court in settling disputes amongst political parties and office bearers in the National Assembly concerning the proper interpretation of the Constitution and the Rules of the National Assembly.. Contribution focusses on the Court's explanation in the latter, arguably obiter part of the judgment that relates to the factors, orlegal position and conditionalites, that would guide the Speaker's decision as to the proper voting procedure in a motion of no confidence. Kohn argues that in developingan expansive conception of rationality review – in the absence of meaningful engagement with the prescripts of the separation of powers doctrine – and thereby increasing their reservoir of judicial power, the courts may be perceived to be expanding their supervisory review jurisdiction in a manner that amounts to an affront to this doctrine." As the separation of powers doctrine has come under intense scrutiny, especially in the light of Economic Freedom Fighters v Speaker of the National Assembly (hereafter EFF), this note discusses the Court's potential expanded notion of rationality review in UDM and notes the possible implications on the doctrine of the separation of powers, implications not considered by the Court but which may have longer term negative consequences
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
