Image of an empty Parliament of South Africa.

File image of an empty Parliament of South Africa. According to experts, the first sitting will go ahead, even without the MK Party’s members. Image: Parliament of SA (Flickr)

ANC can elect president during first sitting of Parliament with only its members – legal expert

Lawson Naidoo, a legal expert, says the ANC can get a quorum during the first sitting of Parliament, using only its members if needed.

Image of an empty Parliament of South Africa.

File image of an empty Parliament of South Africa. According to experts, the first sitting will go ahead, even without the MK Party’s members. Image: Parliament of SA (Flickr)

If all political parties, bar the ANC, decide to boycott the first sitting of Parliament, the House can still quorate, sit lawfully and elect the president of South Africa.

This is according to legal expert, Lawson Naidoo.

Speaking to SABC News on Wednesday morning, Naidoo said uMkhonto weSizwe (MK) Party’s members not attending the first sitting of Parliament would not hinder its work or proceedings.

‘ANC get job done during first sitting of Parliament,’ claims expert

“The quorum for Friday is 133 [out of 400 members of Parliament].

“The absence of the MK Party’s 58 members will have no effect on that process [of electing the speaker, deputy speaker and president]. Parliament can still proceed with its business.

“The ANC’s 159 members, on their own, constitute a quorum for the National Assembly,” Naidoo, executive secretary for the Council for the Advancement of the South African Constitution, said.

After declaring last week that they would not attend the first sitting of Parliament, on Tuesday the MK Party approached the Constitutional Court (ConCourt) to urgently interdict the sitting, saying the 29 May elections were not free and fair. However, they have not provided evidence to support this claim.

MK Party disagrees

And speaking to Newzroom Afrika’s Thabo Mdluli on Tuesday evening, MK Party’s spokesperson Nhamulo Ndhlela said they were confident their non-participation could stop the proceedings.

“Our lawyers will argue that we believe that with uMkhonto weSizwe in effect not being part of the sitting of the National Assembly, it will lead to the below threshold [count] of 350 members of the National Assembly.

“We have been hearing that Parliament can sit in the form a third, meaning a 133 [members], to continue with its business and effectively quorate. We are saying in our papers that we don’t believe that is true because in order for a National Assembly to sit and exist, and be duly constituted as per the Constitution, they [MPs] need to meet the minimum threshold of 350,” Ndhlela said.

However, Naidoo said the MK Party’s chances of the interdict being granted were very slim and called the application “frivolous”.

“The Constitutional Court is not really designed to hear urgent matters. It is the high courts that have that responsibility to hear matters on an urgent basis

“[And] the chances of the Constitution Court hearing this matter in the next 48 hours are extremely slim. I expect the court to dismiss the application without a hearing,” Naidoo told SABC News.

And Naidoo’s sentiments are echoed by constitutional law expert, Prof Pierre de Vos.

“The election of the president [during first sitting of Parliament] will not be derailed by the [MK Party’s] urgent application lodged with the Constitutional Court on Tuesday by the MK party. The first problem is that the Constitutional Court is not geared to deal with urgent matters in the time remaining before the sitting on Friday,” De Vos said in his blog.

Additionally, the University of Cape Town professor said the MK Party’s interpretation of the rules was incorrect.

“A decision by more than 50 MPs not to be sworn in does not amend the provisions of the Electoral Act that fixes the size of the National Assembly at 400. MK’s reliance on section 46 [1] [and its failure to read the section in conjunction with section 46 {2} as well as the relevant provisions of the Electoral Act] is therefore fundamentally misplaced,” De Vos said.

A screenshot of the Constitution dealing with the first sitting of Parliament