Oriani-Ambrosini v Sisulu, Speaker of the National Assembly

JurisdictionSouth Africa
JudgeMogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
Judgment Date09 October 2012
Citation2012 (6) SA 588 (CC)
Docket NumberCCT 16/12 [2012] ZACC 27
Hearing Date07 August 2012
CounselD Unterhalter SC (with S Pudifin-Jones) for the applicant. IV Maleka SC and NH Maenetje SC for the respondent.
CourtConstitutional Court

Mogoeng CJ (Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring):

Introduction E

[1] The question that arises from this application for leave to appeal is whether the National Assembly may regulate its business in a manner that may deny its members the opportunity of introducing a Bill in the Assembly, in terms of s 73(2) of the Constitution. [1]

[2] The matter first served before Allie J, [2] in the Western Cape High F Court, Cape Town (high court). It was a challenge to the constitutional validity of those Rules of the National Assembly [3] (Rules) that require a member of the Assembly to secure 'permission' from it before she may 'introduce' a Bill in terms of s 73(2). That application was dismissed on the ground that the impugned Rules are not in breach of a member's G constitutional power to introduce a Bill. It is that unfavourable outcome that moved the applicant to launch the application.

Mogoeng CJ (Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

A [3] The relief sought then and now is essentially —

(a)

a decision reviewing and setting aside the refusal by the Speaker of the National Assembly (Speaker) to introduce the applicant's proposed National Credit Act Amendment Bill in the Assembly;

(b)

an order directing the Speaker to have the applicant's Bill introduced B in the Assembly in terms of the same procedures and under the same conditions that apply to a Cabinet member or a Deputy Minister; and

(c)

a declarator that any Rule which prevents a member of the Assembly from introducing a Bill in the Assembly is constitutionally C invalid. [4]

Parties

[4] The applicant is Mr Mario Gaspare Oriani-Ambrosini, a member of the Inkatha Freedom Party, [5] who is also a member of the National Assembly. [6] The respondent is Mr Maxwell Vuyisile Sisulu, MP, who is cited in his capacity as the Speaker.

Background D

[5] A brief account of the Rules will help put the constitutional challenge in a proper context. The Rules provide that a member of the National Assembly may introduce a Bill in the Assembly, in accordance with E s 73(2), only if the Assembly has given her 'permission' to initiate legislation. [7] For the purpose of obtaining that permission, she must submit a memorandum to the Speaker, setting out the particulars of the proposed legislation; explaining its objects; and stating whether it will have financial implications for the state. [8]

F [6] The Speaker must then refer the memorandum to the Committee on Private Members' Legislative Proposals and Special Petitions (Private Members' Committee), which may in turn consult a portfolio committee that deals with the subject-matter of the proposal. After considering the memorandum the Private Members' Committee then recommends to G the Assembly that permission to proceed with the legislation either be given or refused. A positive recommendation may be accompanied by an indication of the proposal's desirability, a recommendation that the proposal be approved by the Assembly in principle, or that permission be given subject to certain conditions. [9]

H [7] The Private Members' Committee must table a member's memorandum and its recommendation, along with the views of a portfolio committee on the financial or other implications of the proposal, in the

Mogoeng CJ (Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

Assembly. [10] The Speaker then places these documents on the Order A Paper for decision. [11] If the Assembly votes to give permission for the proposal to be proceeded with, [12] the member is free to prepare a draft Bill in the manner and form prescribed by the Rules. [13] Why and how aspects of these Rules led to the application before us follows in the next three paragraphs. B

[8] The applicant became a member of the National Assembly on 6 May 2009. He had several concerns about the procedures of the Assembly, in particular the requirement that a member needs the Assembly's permission before she may introduce a Bill in the Assembly. In his view, any Rule that stipulates permission as a requirement in this regard is constitutionally invalid. C

[9] To have this matter addressed, the applicant directed complaints to the Speaker in a letter dated 15 May 2009. The response was that the applicant was mistaken because the Rules are in conformity with the Constitution. On 10 June 2009 the applicant raised a point of order on D this matter during a sitting of the National Assembly. This was rejected by the Speaker. During the course of the next few months the applicant wrote more letters to the Speaker and one to the chairperson of the Sub-Committee on the Review of the National Assembly Rules. None of these letters drew a response.

[10] Having not achieved a satisfactory outcome through the internal E procedures of the National Assembly, the applicant challenged the constitutional validity of the Rules in the high court.

In the high court

[11] The high court held that individual members do not have the power F to initiate or prepare legislation, as these powers vest in the Assembly. Further, it held that the institution vested with the authority to permit or refuse the further progression of an individual member's legislative proposal, to the stage of being introduced as a Bill, is the National Assembly, not the Private Members' Committee. The latter makes G non-binding recommendations to the Assembly only. It held that the possibility of a legislative proposal not being allowed by the majority party in the Assembly to go beyond the initiation or preparation stage is not inimical to democracy. In this regard, the court cited the decisions of this court [14] and the Supreme Court of Appeal, [15] which upheld the constitutionality of majority decision-making as a legitimate democratic H principle.

Mogoeng CJ (Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

A [12] As a result, the application was dismissed with costs. This was followed by an unsuccessful application for leave to appeal to the Supreme Court of Appeal. [16] The applicant then approached this court for leave to appeal.

Issues B

[13] These are the preliminary issues:

(a)

Condonation for the late filing of the Speaker's notice of opposition and answering affidavit.

(b)

Leave to file a replying affidavit.

(c)

C Condonation for the late filing of the record.

(d)

Condonation for the late filing of the applicant's written submissions.

(e)

Leave to appeal.

[14] The central issue is whether it is open to the National Assembly, in D the exercise of its power in terms of s 57 of the Constitution, [17] to impose a permission requirement that may prevent a member of the National Assembly from exercising her power to introduce a Bill in terms of s 73(2) of the Constitution. To decide this issue, these matters must be considered:

(a)

E Whether the power created by s 55(1)(b) of the Constitution also vests in individual members of the National Assembly.

(b)

The scope and meaning of s 73(2) of the Constitution.

(c)

The scope and meaning of s 57 of the Constitution.

(d)

Remedy.

Condonation: notice to oppose and answering affidavit F

[15] The Speaker filed his notice of opposition and an answering affidavit after the dies had expired. The delay was short and the applicant concedes that condonation is in the interests of justice. Condonation G should, therefore, be granted.

Mogoeng CJ (Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

Leave to file a replying affidavit A

[16] The rules of this court make no provision for a replying affidavit to be filed. Yet the applicant seeks leave to do so. He submits that his affidavit will clarify certain issues and obviate a consideration of irrelevant matters, and he is correct. There is no opposition and the affidavit will not prejudice the Speaker. It is in the interests of justice to grant B leave and I am inclined to do so.

Condonation: record

[17] On 4 May 2012 this court issued directions in terms of which the C applicant was required to file the relevant portions of the record in the high court on or before 31 May 2012. He failed to do so and only filed the record along with an application for condonation on 4 June 2012.

[18] The delay is relatively short and the Speaker has suffered no prejudice, since the applicant delivered a copy of the record to the D Speaker's attorneys on 31 May 2012. I am inclined, therefore, to grant condonation.

Condonation: written submissions

[19] The directions also required of the applicant to file his written E submissions on or before 15 June 2012. Again, the applicant did not file his submissions on time. He only filed them, along with an application for condonation, on 19 June 2012. The principal explanation tendered is that unforeseen circumstances were the cause of the failure to file timeously. The applicant delivered a copy of the submissions to the Speaker's attorneys on 15 June 2012. The delay is relatively short and F the Speaker suffered no prejudice because he received the submissions on time. Condonation should thus be granted.

Leave to appeal

[20] This matter raises important constitutional issues. They concern G the power to introduce a Bill in the National Assembly, [18] the power to initiate or prepare legislation, [19] the interpretation of the National Assembly's power to make rules in terms of which its business is governed, [20] and the values that underpin our democracy. [21]

[21] The National Assembly, its individual members and the public have H a keen interest in the...

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35 practice notes
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  • The importance of process and substance
    • South Africa
    • Sabinet Southern African Public Law No. 32-1&2, August 2017
    • 1 August 2017
    ...the National Assembly & Others 2006 (6) SA 416 (CC) (‘Doctors for Life’).37 Matatiele (n 4). 38 Doctors for Life (n 36) para 115. 39 2012 (6) SA 588 (CC) (‘Oriana-Ambrosini’).40 ibid para 11Marcus and Du Plessis The Importance of Process and SubstanceReturning, then, to Doctors for Life, we......
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27 cases
  • Minister of Defence and Military Veterans v Motau and Others
    • South Africa
    • Invalid date
    ...OF DEFENCE v MOTAU2014 (5) SA 69 CCABCDEFGHIJ© Juta and Company (Pty) Ltd Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588(CC) (2013 (1) BCLR 14; [2012] ZACC 27): dictum in paras [16]–[19]appliedPermanent Secretary, Department of Education and Welfare, Eastern Cap......
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Invalid date
    ...Prosecutions v Moodley and Others 2009 (2) SA 588 (SCA): referred to Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) (2013 (1) BCLR 14; [2012] ZACC 27): referred to D Panamo Properties (Pty) Ltd and Another v Nel and Others NNO 2015 (5) SA 63 (SCA) ([2015] Z......
  • My Vote Counts NPC v Speaker of the National Assembly and Others
    • South Africa
    • Invalid date
    ...and Others 2010 (4) BCLR 312 (CC) ([2009] ZACC 33): referred to Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) J (2013 (1) BCLR 14; [2012] ZACC 27): referred to 2016 (1) SA p137 PFE International and Others v Industrial Development Corporation of South Afri......
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    ...Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): referred to Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) (2013 (1) BCLR 14; [2012] ZACC 27): referred Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and O......
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8 books & journal articles
  • The importance of process and substance
    • South Africa
    • Sabinet Southern African Public Law No. 32-1&2, August 2017
    • 1 August 2017
    ...the National Assembly & Others 2006 (6) SA 416 (CC) (‘Doctors for Life’).37 Matatiele (n 4). 38 Doctors for Life (n 36) para 115. 39 2012 (6) SA 588 (CC) (‘Oriana-Ambrosini’).40 ibid para 11Marcus and Du Plessis The Importance of Process and SubstanceReturning, then, to Doctors for Life, we......
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    • 1 August 2017
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