Reviewing the Speaker's decision : a brief synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)

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.