Daily Maverick
Dailymaverick logo

Opinionistas

This is an opinion piece. The views expressed are not that of Daily Maverick.....

MK party skating on thin ice after giving the nod to impeached Judge Hlophe as chief parliamentary whip

Loammi Wolf
By Loammi Wolf
24 Jun 2024
Facebook
0
If the law is applied correctly, there is no leeway for the MK party to ‘nominate’ impeached former Cape Judge President John Hlophe to be its leader in the National Assembly.

It has been reported that former Western Cape Judge President John Hlophe, who was recently impeached, is set to lead the uMkhonto Wesizwe (MK) party in the National Assembly.

The revelation came from a leaked document issued by MK Secretary-General Arthur Zwane, detailing the party’s new leadership appointments. MK spokesperson Nhlamulo Ndhlela subsequently confirmed this on 21 June.

This is surprising since Hlophe does not appear on the list of candidates for the MK party – neither on the national list of 198 candidates nor on the regional lists.

After the votes were counted, the Electoral Commission of SA (IEC) designated 58 seats for the MK party. The procedure is set out in item 14 of Schedule IA to the Electoral Act. It specifies that after the counting of the votes has been concluded and the number of seats of each party has been determined, the IEC must designate from each list of candidates the representatives of each party to the National Assembly.

The Act further states that if a candidate’s name was on a regional list and the national list, the party must inform the commission from which list the candidate should be designated, with the candidate’s name being deleted from the other list. The candidate next on the list then moves up one slot. The period to do this is short (two days). If a party fails to indicate to the commission from which list a candidate’s name must be deleted, such candidate’s name must be deleted from all the lists.

The IEC proceeded to publish the list of names of representatives in the National Assembly in the Government Gazette. After that, it handed over the list to the Chief Justice, who must inaugurate the members of Parliament.

John Hlophe was not nominated as a candidate on the national list and also not on the national regional list of candidates that the MK party submitted to the Electoral Commission. So, how does it come about that he is suddenly nominated by MK to be a member of Parliament?

For that, one must look at the rules to supplement lists. Item 15 says that a party may not supplement a list of candidates for the legislature prior to the designation of representatives by the IEC. In other words, the candidates who were nominated by the party for election on their list get into Parliament according to the number of seats allocated to the party, depending on their ranking on the lists.

After the designation of candidates for each party by the IEC, a party may supplement its lists of candidates “on one occasion only at any time during the first 12 months following the date on which the designation of representatives … has been concluded, in order to fill casual vacancies”. The names of the persons who are added must be made at the end of the list (Item 17.)

A casual vacancy can only arise after designated members have been inaugurated by the Chief Justice because that is when members of Parliament take up their office. 

In the case of Hlophe, there is simply no MK party vacancy that could be filled because its members have not even been inaugurated.

But let us therefore presume that the plan of the MK party is that once its designated members have been inaugurated, one of its duly elected members of Parliament should make place for Hlophe. The next issue would be to clarify under which circumstances a casual vacancy arises.

One must first look at what the Constitution says. Section 47(3) lists three instances when a casual vacancy can arise, namely if a member of Parliament:


  • Ceases to be eligible [on the basis of the grounds listed in section 47(1) of the Constitution, e.g. if a member of Parliament is convicted and sentenced to more than 12 months imprisonment, becomes insolvent, is mentally incapacitated, etc].

  • Is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership.

  • Ceases to be a member of the party that nominated that person as a member of the Assembly.


None of these circumstances is present in order to construe a casual vacancy that could be filled by Hlophe. That is, apart from the fact that the party currently has no members of Parliament who have taken up their seats.

Item 16 of Schedule 1A to the Electoral Act expands on casual vacancies and includes the following instances:

  • If a representative is elected as the president or to any other executive office as a result of which he or she resigns as a representative of a legislature;

  • If a representative is appointed as a permanent delegate to the National Council of Provinces;

  • If a name is deleted from a list in terms of item 14(2) or (3); or

  • A vacancy has occurred and the appropriate list of candidates of the party concerned is depleted.


The first instance is not applicable, because the party leader of the ANC was elected as President. That does not involve the MK party.

Second, none of the would-be MK members of Parliament could have been designated as permanent delegates to the National Council of Provinces either because they have not yet been inaugurated.

Third, there is no information available on whether or not designated members have been deleted from one list in favour of another list in order to take up a seat in Parliament, but even so, the lists are so long that there are more than enough candidates to stand in.

Finally, should a designated member resign shortly after having been inaugurated to create an artificial vacancy, the party’s lists of candidates have not been depleted. There were 199 candidates listed on the MK party’s national list and 198 of them remained after Jacob Zuma was barred from standing for office.

Ample candidates were also listed on the various regional lists: Eastern Cape (25); Free State (nine); Gauteng (47); KwaZulu-Natal (40); Limpopo (19); Mpumalanga (15); North West (13); and Western Cape (25). There are therefore more than sufficient candidates to fill any putative “vacancy” from both lists.

However, what has transpired is that Parliament has implemented the rule to fill vacancies in a very curious way since 2014. To fill a vacancy, the candidate must state under oath, first, that he/she is eligible (i.e. not barred in terms of s 47(1) of the Constitution), and, secondly, “available” or “not available”.

According to insiders familiar with the circumstances, the party lists are often artificially “depleted” insofar as candidates, who are next in line on the list to fill a vacancy, are often pressurised to state that they are “not available” in order to delete them from the list. In this way, numerous persons could be taken off the list to deplete it in order to make place for candidates who are added on a supplementary basis.

It would appear that this is the trick up the sleeve of the leaders of the MK party to make a place for Hlophe as their leader in Parliament, although there are many candidates still available on their lists. The MK party is not the only culprit in this regard, though.

This “arrangement” is obviously unconstitutional because section 19(3) of the Constitution guarantees the right of adult citizens to vote for candidates or to stand for office, and if elected, to hold office. The supplementing of party lists to fill casual vacancies should be a rare exception because the party bosses then de facto “nominate” outsiders who did not participate as candidates in the election to fill a vacancy.

In Electoral Commission v MK Political Party and Others, the Constitutional Court also ruled that the eligibility of a candidate must be examined by the Electoral Commission before the elections. Such an examination by Parliament would therefore only be applicable when an elected member becomes disqualified after the election or when a list is supplemented.

One could likewise argue that if a person declares him/herself willing to be a candidate in an election, such a person should then also be “available” to fill a vacancy.

To summarise, if the law is applied correctly, there is no leeway for the MK party to “nominate” former Judge Hlophe to be its leader in the National Assembly.

It would be advisable for the Chief Justice to have a hard look at the applicable law before inaugurating the 58 designated members of the MK party should their number include persons other than those designated by the Electoral Commission. DM

Categories:

Tags: