Scribd Logo
Upload

Welcome to Scribd!

  • Mbete Affidavit Part2

    Uploaded by

    eNCA.com
    44K views10 pages
    National Assembly Speaker Baleka Mbete's Answering Affidavit in the matter with the United Democratic Movement (Part 2)

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    National Assembly Speaker Baleka Mbete's Answering Affidavit in the matter with the United Democratic Movement (Part 2)

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    44K views10 pages

    Mbete Affidavit Part2

    Uploaded by

    eNCA.com
    National Assembly Speaker Baleka Mbete's Answering Affidavit in the matter with the United Democratic Movement (Part 2)

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 10
    a 317. the disadvantage Is that there is no possiblity of an appeal: experience has shown that decisions are more likely to be correct if ‘more than one court has been required to consider the issues raised, In order to determine whether itis in the interests of justice to grant direct ‘access to this Court, the following considerations are important 324 32.4. 32.5, that the applicant has exhausted all other intemal remedies and procedures avaliable; exceptional reasons must be set out that require the circumvention of the jurisdiction of the High Court and the Supreme Court of Appeal; the matter must be of sufficient urgency and public importance to warrant direct access; there must, inter alia, be proot ot prejudice to the public interest or the ‘ends of justice and good government; and the urgency must not be self-created. ‘Accordingly, and in view ofthe above, applications for direct access must be ‘sought in the most exceptional of circumstances. fs fs 3, ar 38, | submit that there are no exceptional circumstances warranting the granting of direct access in casu, Moreover, the hearsay allegations of the Applicant will probably be disputed and would require factual resolution In this matter the Applicant has not exhausted its internal remedes, in that, a party or a member has the right to approach the Rules Committee with proposals for amendments to the Rules. In terms of tis procedure a member ‘may make submissions to the Rules Commitee, iit is a complicated or ‘complex matter the Rules Commies refers the matter to its sub-committee which will make proposals to it. Ater decision by the rules committee the proposed amendment wil serve before the House for consideration (soe prayraph 83 below). Where 2 matter 1s extremely urgent there may be a ‘motion submitted fo the House for consideration ater poltical consultation (600 paragraph 64 below) (On the contrary he Applicant eupported the adoption ofthe current Rules that were adopted on 26 May 2016, Furthermore, the Tlouamma case was not taken on appeal and when it came to be decided the main issue had become moot. | therefore submit that itis not inthe interests of ustice for diract access to be fies 2 39. 40, a In the light of the directions of this Court dated 11 April 2017, | do not take issue with urgency. | must, however, express my great concem at the ‘extremely truncated time within which the Applicant sought to have the Respondents answer its allegations. ‘Contrary to what the Applicant states in paragraph 18 of ts founding Affidavit, |am advised that the principe ofthe separation of powere ie implicated inthis application. ‘The Applicant seoks this Court to prescribe to the NA that it must determine ‘motons ot no confidence by secret ballot, | am advised that the principle of separation of powers forbids Courts from intervening in matters that fal within the domain of the national legisiature ‘except where the intervention is mandated by the Constitution, |1am also advised that Courts must observe the limits oftheir own power. # 46. ‘Tho Constitution grants the power to Parliament [NA and the National Council ‘of Provinges (NCOP) to determine and control ther internal arrangements, proceedings and procedures and make rules and orders concerning their business with due regard to representative and paticpatory democracy, accountabilty, transparency and pubic Involvement. (S 57(1) inthe case of the NA, s70(1) in the case of the NCOP], | am further advised that when it comes to the matters referred to In paragraph 44, above, the Constitution contemplates a restrained approach to Intervention to those matters by the courts. Such intervention will only be ppormissibie itis undertaken to uphold the Constitution. | am advised that established legal principles, based on case law, provide as follows: 46.1. the Rules do not expressly or implictly provide for voting by secret ballot 46.2. Rule 6(1) of the Rules Is intended to cover matters that are not dealt with in the Rules; the Rules deal with voting expressly, therefore, Rule 6(1) cannot be applicable thereto; 46.3. courts are not concerned with the motives of members of the Legislature who vote in favour of particular legislation; a 48, 465, 488. 46.7 46.8. there was nothing wrong in our multiparty democracy, with Cabinet ‘seeking to give effect tothe policy of the majority party; itis not forthe courts to be concemed with poltical questions but the function ofthe courts isto ensure that political decisions conform with the Constitution; the NA is the master of its own internal arrangements, proveedings and procedures; courts should be mindful ofthe judicial limits not to impose spectic rules on the NA; it fe not the function of the Court to introduce the requirement for a secret ballot. neither the Rules nor my impugned decision of 6 April 2017, violate or threaten to violate any provision of the Constitution, Intervention by this Court is not warranted, Finally, | am advised that granting the reliof sought by the Applicant would constiute ar infingement of the principle of the separation of powers. Role of Rules Committe in the NA 50, ‘The NA Rules Committes, is empowered in terms of Rule 193, to issue Cirectives and guidelines to assist with the implementation of the NA Rules 4nd orders. It comprises the Speaker, the Deputy Speaker, the Chief Whip and nine members of the majority party, the Chief Whip of the largest eppositon party and two other members of that party, two members of the second largest opposition party, and two member's representative of other partes (clause 191 of the NA Kules). The function and powers ofthe Rules Committe are to: 50.1 50.4, 80, ovolop ond formulate gelicy proposels conceming the exchisive business of the Assembly in respect of the proceedings, procedures, rules, orders and practices concerning the business of the Assembly; ‘monitor and oversee the implementation of policy on all matters rwferred to in Paragraph 80.1; ‘ako recommendations to the Joint Rules Committee on any matter faling within the functions and powers ofthe Rules Committee; lay down guidelines and issue directives regarding any aspect of policy referred to inthis rule; appoirt committees or subcommittees to assist it with the performance of any ofits functions or the exercise of any ofits powers: iy 51 508. 507 recommend to the Assembly for adoption rules and orders and other policy proposals concerning the business of he Assembly; and perform any other functions assigned to It by legislation, other provisions of these rules or resolutions of the Assembly. ‘The Rules Committee can deal with a matter fling within its functions and powers on its own initiative or when referred to it for consideration and report by the NA, the Speaker or a member. Rule 8 regulates the rulings of the NA and provides that: 52.4 522. 523 ‘Tha Speaker must perform the functions as provided for in the Rules and may make rulings in applying and Interpreting these rules, orders of the House and directives and ouidelines approved by the Rules Committe. ‘The Spoaker and other presiding officers may make rulings in accordance wih sub-rule (1) in rest ct of procedural matters that arise when they are presiding at @ siting of the House or 8 mini plenary session. ‘Members must comply with rulings made by presiding officers. fr 7 6B 55 52.4. A member may request that a ruing be referred to the Rules Committee for consideration and report. 52.5. In considering a ruling referred to it in terme of Sub-ule (4(a), the Rules Commitee must confine itself to the principle underlying, or ‘subject of, the ruling in question * ‘The Applicant's complaint in respec ofthe impugned decision (or Rule) could (and should have) been referred to the Rules Commitee for deliberation, direction and guidelines in terms of clause 8(4(a) ofthe Rules. The members ‘of tho NA are enjoined to comply withthe directives and guidelines issued by the Rules Committee (clause 7 of the NA Rules) ‘Alternative to this process, the Applicant could (and should) have brought motion before the House for the amendment of the Rules. This being an internal House issue, the Applicant should have attempted to lobby its ‘members and all other parties represented in the House to amend the Rules. | note the voting procedures of the NA are an Internal process iseve. The Court cannot be called upon to resolve an internal issue in circumstances where the Applicant has not exhausted all available internal remedies and choosing instead, to Invite the Court to inrude info the domain of the Legisiature, or | note that there has been no allegation by the Applicant that such an attempt was made on the papers. Accordingly, this application is not ripe for determination and, therefore, and ae stated above, direct access should not 0 granted, ting Procedure in the NA ‘The Rules provide that the NA voting process is subject to the Constitution and the Rules 103 or 104. Rules 103 and 104 provide that: 571. Rule 103. Electronic voting system S11.4. Ata siting of the House held In @ Chamber where an electronic voting system is in operation, unless the presiding officer directs otherwise, questions are decided by the ullisation of such eystem in accordance wih a procedure predetermined by the Speaker and directives as ‘announced by the presiding officer. 57.1.2. Members may vote only from the seats allocated to them individually in the Chamber. 571.3. Members vote by pressing the “Yes", "No" or “Abstai 0 B 872. sr44, 67.48. 57.46, Rute 104, 6724 87.2.2. button on the electronic consoles at their seats when

    You might also like