The inaugural National Assembly sitting — MK may be missing in action, but the show goes on

The first sitting of the National Assembly will go ahead regardless of the absence of 58 uMkhonto Wesizwe (MK) party MPs. Crucially, their boycott does not mean the 400-strong National Assembly fails to be properly constituted — MPs are MPs because of the election results as declared by the Electoral Commission of South Africa (IEC). That’s why all political parties submit lists of their representative candidates before the elections. 

Section 46 of the Constitution makes it clear the National Assembly is composed of women and men “elected as members in terms of an electoral system...”, not those sworn in. Similarly, Section 48 of the Constitution talks of MPs’ status arising from elections even before their swearing-in: “Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution...”. 

Sworn in or not — how to lose one’s parliamentary seat 

If the 58 MK MPs are not sworn in on Friday, this can still happen at a later stage, traditionally in the Speaker’s office by a judge nominated by the Chief Justice. 

But the clock is ticking. If the 58 MPs are absent for 15 consecutive sitting days, National Assembly Rule 36 requires a motion to be brought in the House to explain their absence and to get permission for this and any further leave of absence.

If no such motion requesting authorisation of leave beyond 15 consecutive sitting days is brought, the involved MPs lose their seats, according to Rule 37(1): 

“A member who absents himself or herself for 15 or more consecutive sitting days of the Assembly without authorisation as provided for in these rules, loses his or her membership of the National Assembly in accordance with Section 47(3)(b) of the Constitution.” 

That constitutional section states: “A person loses membership of the National Assembly if that person ... (b) is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership.”  

If the 58 MPs lose their membership of the National Assembly, it will cost each of them their R1.2-million annual remuneration, plus perks like flights, airtime and data, alongside tablets and more. Then the next 58 MK candidates as listed in the party’s elected public representatives lists submitted to the IEC become eligible to be sworn in. If MK repeats the boycott, the same processes leading to loss of membership unfold. 

By not participating in Friday’s inaugural National Assembly sitting, or subsequently, the 58 MK MPs will effectively betray the 2.34 million voters who cast their ballots to send them to Parliament. 

On Tuesday, MK lodged an urgent application at the Constitutional Court which sought to interdict the Chief Justice and/or the Secretary of Parliament from convening and/or conducting the first sitting of the National Assembly (NA), or alternatively, to suspend the decision to convene the first sitting.

On Wednesday night, the court dismissed the application ruling that it was not in the interest of justice to grant direct access as the urgency was "self-created" by MK, it was not in the court's jurisdiction, and the party had failed to show that it would  suffer irreparable harm if the interdict was not granted.

https://www.youtube.com/watch?v=ZFoD6heUkhA

On the order paper: Electing the Speaker 

The presiding officer for the National Assembly’s inaugural sitting is Chief Justice Raymond Zondo, who on Monday set the 14 June date, catching many by surprise as it is before Sunday, the last day of the constitutional 14-day timeline from the IEC election results and seat declaration on 2 June. 

First up will be the swearing in of all MPs, usually done in batches, to swear or affirm faithfulness to South Africa to “obey, respect and uphold the Constitution and all other law”. 

Then the process moves to nominating — and ultimately electing — the Speaker. That will give the first insight into how far along, if at all, the talks for a national unity government are. If moves towards a joint administration have stalled, a contest of Speaker candidates may unfold. If only one nomination emerges, it would signal some agreement between the ANC, DA, IFP and perhaps others in line with the 2024 election result that shattered the ANC majority down to 40%, giving no single party a lead. 

https://www.dailymaverick.co.za/article/2024-06-11-speaker-first-of-key-choices-in-any-national-unity-government-cooperation-talks-continue/

The post of Speaker has only been contested once. In 2014 the DA nominated DA MP Nosimo Balindlela, who lost to then ANC national chairperson Baleka Mbete with 88 votes to 260. 

The newly elected Speaker presides over the election of the Deputy Speaker, a process that to date has not been contested.

Also on the order paper: Electing the President

The Chief Justice returns to preside over the election of the President, which traditionally takes place after lunch. Like electing the Speaker, this is the constitutional responsibility of the National Assembly’s first sitting — and it is the only constitutional requirement to form a government. 

Presidential nominations are called from the floor of the House, but must be supported by a form that’s signed and seconded. The presidential nominee must accept the nomination, also in writing.

If there is only one nomination, then the election of the President is done. 

Electing the President may not be such a surprise given widespread agreement within the ANC and also among the DA and the IFP, which on Wednesday indicated it would join a national unity government. It’s likely that President Cyril Ramaphosa will be nominated for a second and last term as President. 

However, a challenger nomination can’t be ruled out, and then a secret ballot will settle the presidential contests. The candidate “who receives a majority of the votes” is declared the winner, according to Schedule 3, Part A of the Constitution.  

This has happened just once before, in 2009, when Cope MP Bishop Mvume Dandala was nominated as President, but lost by 47 votes against 277 to the ANC’s nominee, Jacob Zuma. 

If in 2024 more than two presidential candidates are nominated, it goes into the uncharted waters of a run-off. The presidential candidate with the least votes is eliminated and the nominee with the majority of votes remains — and is declared President, according to the Constitution. 

Quorums 

The boycott by MK MPs of the first sitting is a disruptive tactic, like its flawed Constitutional Court application to interdict Friday’s National Assembly sitting, despite the party failing to approach the Electoral Court as is statutorily required. 

Such disruptive tactics are politically motivated to scupper a presidential election, and thus the basis for the next administration. Or if that does not succeed, to at least create whispering campaigns to undermine democratic processes. It’s straight out of the playbook of ex-US president Donald Trump. 

But MK is confusing the composition of the National Assembly with how many MPs it takes for the House to work, or a quorum. 

For any question other than deciding on laws, a quorum is one-third of MPs, or 133, in the House. For legislation to be adopted, the quorum is 201. That’s according to National Assembly Rule 96, or Section 53 of the Constitution: “Except where the Constitution provides otherwise ... at least one-third of the members must be present before a vote may be taken on any other question before the assembly.” 

These special constitutional thresholds include the appointment of the Auditor-General or Public Protector with 60% approval, while impeachment of Chapter 9 institutions supporting democracy or a President needs a two-thirds majority.  

But electing a President just requires a third of the 400 MPs, or 133, in the House, and is done with a majority of members’ support. If it comes to that, the ANC with its 159 MPs could carry its choice by itself.  

It’s unlikely any MPs other than MK members will be absent on Friday. The first sitting of the National Assembly is a foundational moment in any parliamentarian’s professional life.  

So, expect 342 MPs from 17 political parties in the House. That means the required simple majority to elect a President is 172 “yes” votes. Of that, the ANC has 159; it would need an extra 13 votes from other parties. With the IFP publicly onboard the national unity government, its 17 MPs can be expected to support the ANC’s Ramaphosa. The ANC can also expect to pick up support from Al Jama-ah and Good, which previously supported the party. 

But given the series of meetings to form a national unity government, it seems unlikely the DA and IFP will vote against Ramaphosa. Neither party has raised objections in these talks. 

Presidential inauguration — more time for national unity government talks

When the National Assembly elects the President — the only constitutional requirement to form a government — this sets in motion another, and final timeline set down in the Constitution.  

This would allow five extra days for any national unity government discussions to be wrapped up, as by Wednesday morning the IFP, DA and ANC had agreed only on broad principles, according to IFP leader Velenkosini Hlabisa in a televised media briefing.  

Once elected, the President ceases to be an MP and within a maximum of five days must take the oath of office and swear obedience to the Constitution, according to Section 87 of the Constitution. 

The presidential inauguration is scheduled for 19 June at the Union Buildings, unlike the 2019 ceremony that saw Ramaphosa take the oath of office and swear obedience to the Constitution in Loftus Versfeld rugby stadium. 

On taking the oath, the President’s term of office starts, which in turn allows the President to appoint his Cabinet, deputy ministers and structure the government.  

In 2029, Ramaphosa took four days to announce his executive, three days longer than ex-presidents Jacob Zuma and Thabo Mbeki, who both announced their Cabinets the day after their inauguration. 

In 2024 the President could take even longer than four days — if national unity government talks require more time to resolve who gets what post where. Or not. There is no deadline for when the President must announce the Cabinet.  

However, government departments continue their work based on the annual performance plans and strategic plans submitted earlier in 2024 to Parliament for scrutiny. Parliament is constituted and competent to oversee departments and state entities, initiate legislation and pass the Budget by 31 July, the hard statutory deadline.  

Put differently, South Africa’s constitutional democracy and its institutions work — from the IEC, the Office of the Chief Justice and the courts, to Parliament. 

If the politicians can’t get their act together to form a national unity government — or any other government — it will underscore why politicians over recent years have consistently lost public trust.

Friday’s first sitting of the National Assembly will be an important signal of South Africa’s next steps. DM