Reflections on the state of Democracy and Parliament by Judith February

“Parliament, is the embodiment of the…dreams and…aspirations of all our people…it is the voice of all South Africans…it is the watchdog of state resources…for the common good…it is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people.”

Commencing on 22 May 2019, South Africa’s sixth democratically elected Parliament (the Sixth Parliament) looked to represent a new dawn for the country, ushering in a period of parliamentary reform, accountability and efficacy in the wake of the institutional devastation wrought by years of rampant state capture.

Five years on, the Sixth Parliament leaves behind a middling legacy characterised by moments of heightened accountability and legislative activity, shot through by dire lapses in effective executive oversight, rapid securitisation of the state, deployment of compromised cadres to positions of power and devastating, but eminently preventable, damage to the historic National Assembly building. Below are some of the highlights, and lowlights, of a reimagined Parliament which, despite its best efforts, remained beholden to blunt political interests.

Parliament began its sixth term by electing Cyril Ramaphosa as the country’s President.

Reflecting on oversight and accountability, broadly speaking, Parliament’s performance has been mediocre and unfortunately marred by inconsistencies. The release of the report by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (the Report) in June 2022 outlined in detail how the ANC defanged Parliament between 2009 and 2018, facilitating rampant corruption and the wholesale capture of the South African state by politically connected individuals. Indeed, the Report concluded that weaknesses in parliamentary oversight and executive accountability had contributed to corruption and maladministration and recommended that Parliament consider reforms to improve its oversight and accountability function. In October of that year, the Presidency submitted a report to Parliament on the implementation of the Commission’s recommendations. Despite adopting its own thirty-one-page implementation report in response, Parliament’s performance in acting on the Commission’s recommendations has been inconsistent at best, with many MPs apparently viewing the process as a tick-box exercise requiring little real engagement. In some instances, Parliament outright rejected the Report’s recommendations for apparently trivial reasons. Faced with this clear opportunity to hold the errant executive to account, many parliamentarians chose to avoid political discomfort by simply acceding to party pressure. In many ways, the Report, and its implementation, was a defining feature of the Sixth Parliament.

The National Assembly expressed a similarly supine attitude towards executive accountability in its response to several high-profile corruption scandals this term.

The National Assembly expressed a similarly supine attitude towards executive accountability in its response to several high-profile corruption scandals this term. For example, its decision to reject an independent panel’s report on the Phala Phala matter has been widely criticised and viewed as an abject failure. Similarly, its handling of the Karpowership controversy has done little to foster confidence in Parliament’s ability or appetite to rein in executive excess. Indeed, Parliament’s abdication of this constitutional function is perhaps best illustrated by the fact that some ministers, despite having been heavily implicated in state capture by the Report, have nevertheless been promoted to powerful positions at the head of various parliamentary portfolio committees. Rather than hold errant officials to account, the Sixth Parliament preferred to reward their unethical behaviour.

There were, however, positive moments of robust accountability during the Sixth Parliament. On 21 February 2024, and in an unprecedented move in South Africa’s democratic history, Parliament voted to remove Western Cape Judge President John Hlophe, and retired Judge Nkola Motata, from office in terms of section 177(3) of the Constitution. The Judicial Service Commission (JSC) found Hlophe guilty of gross misconduct following his attempt to improperly influence the outcome of a matter before the Constitutional Court involving then-President Jacob Zuma. Judge Hlophe’s improper conduct dated back to 2008, meaning it took more than fifteen years for the JSC and Parliament to hold Judge Hlophe fully to account. Similarly, the complaint against Judge Motata dated back to 2007, and arose from his conduct surrounding his conviction for drunk driving earlier that year. While these matters took far too long to reach their conclusion, Parliament’s decision nevertheless represents an important step in maintaining the efficacy and legitimacy of the judiciary.

On 11 September 2023, and in a further display of accountability, the National Assembly considered the removal of Adv Busisiwe Mkhwebane from the office of Public Protector in terms of section 194(1)(c) of the Constitution. With 318 votes for, Parliament supported the Section 194 Committee’s recommendation, making Adv Mkhwebane the first Public Protector to be removed from office in South Africa’s history. In fact, this was the first time that Parliament considered the removal of any Chapter Nine institution office-bearer. A month later, Adv Mkhwebane joined the EFF and was sworn in as an MP on 20 October 2023.

Continuing this trend of increased accountability, Parliament acted against two MPs for breaching the members’ code of ethics at the end of November 2023. Ms D Peters (ANC) was found to have breached the code in three instances related to her tenure as Transport Minister, while Mr F Shivambu (EFF) failed to declare financial benefits stemming from the VBS Mutual Bank saga. The National Assembly banned Peters from debates and sittings for a single term of the parliamentary year and ordered that nine days of Shivambu’s salary be docked. While some have argued that stricter discipline was warranted, it is nevertheless promising to see Parliament exercise some form of accountability over its members. Furthermore, on 21 March 2024, following a raid at her home in Johannesburg (linked to alleged corruption during her time as defence minister), Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, took special leave from public office under a cloud of corruption allegations and amid rumours of her possible arrest. Rather surprisingly, it is understood that Mapisa-Nqakula will continue to be remunerated during this time.

This term also saw an end to the familiar disruption of parliamentary processes (and consequent violence) by members of the EFF. Following their disruptive conduct at the 2023 State of the Nation Address (SONA) the Speaker of the National Assembly ordered six EFF members to leave the Chamber. Instead of leaving, the members crossed the floor and jumped on the stage at the Cape Town City Hall where President Cyril Ramaphosa was to deliver the address. The Speaker then suspended proceedings and called on the parliamentary security services to remove the members. The Speaker referred the matter to the Powers and Privileges Committee, which in turn found the members to be in contempt of Parliament and recommended sanctions against them, including a one-month suspension effective from 1 February 2024. The implicated members’ challenge to this decision in the Western Cape High Court was dismissed in a scathing judgment.

A concerning absence of transparency was, however, highlighted by Parliament’s move to virtual meetings following the advent of the Covid-19 pandemic in early 2020. While virtual meetings initially provided an uptick in transparency and public participation – with members of the public being able to observe and comment on parliamentary meetings as they unfolded – it quickly became clear that not all meetings were being made available in this way. In fact, only 67% of meetings were either live-streamed or otherwise made available online. Given that Parliament has been physically inaccessible since January 2022 (as a result of the fire described below), this means that roughly one-third of parliamentary meetings have effectively been taking place in secret.

In April 2021, following the constitutional challenge to the Promotion of Access to Information Act by civil society group My Vote Counts, Parliament passed the Political Party Funding Act to regulate the manner in which political parties are funded.

On another front, the Sixth Parliament flexed its legislative muscles this term by passing a number of significant pieces of legislation. In April 2021, following the constitutional challenge to the Promotion of Access to Information Act by civil society group My Vote Counts, Parliament passed the Political Party Funding Act to regulate the manner in which political parties are funded. The Act, which is the first of its kind in South Africa, aims to ensure that parties are transparent in how they receive and report the funds that are donated to them. The Act has the potential to fundamentally improve and deepen the way in which South African citizens exercise their political rights and represents a huge step towards creating an informed and empowered electorate.

Similarly, in May 2023, and for the first time since 2012, Parliament amended the Constitution by passing the Sign Language Bill. The bill sought to afford people who are deaf or hearing impaired equal protection before the law. The unanimous adoption of this constitutional amendment brought to 12 the number of official languages in South Africa.

The Electoral Amendment Bill, which will allow independent candidates to stand in the 2024 provincial and national elections, was passed by Parliament on 22 February 2023. The Bill was immediately subjected to a constitutional challenge in which the participation threshold for independent candidates (obtaining signatures equivalent to 15% of the votes required to win a seat in a particular region) was struck out, with Parliament being afforded twenty-four months to remedy the defect. The Constitutional Court’s decision was limited to the facts before it, and therefore does not affect the participation threshold of new unrepresented parties (who are still required to obtain the 15% quota). Despite its deficiencies, the Act is a promising step towards a more inclusive and competitive representative democracy.

A further feature of the Sixth’s Parliament legislative agenda has been the increasing securitisation of the state.

A further feature of the Sixth’s Parliament legislative agenda has been the increasing securitisation of the state. The General Intelligence Laws Amendment Bill 2023 is the latest act in an onslaught began during the Zuma era. On track to be passed into law before the end of the term, the Bill has widely been described as malicious and inadequate. Many of its provisions are vague, and ambiguous and allow the intrusion of state security agencies into society in a way that undermines democracy and lays the groundwork for a return to state capture. One of the Bill’s primary aims is to remove all restrictions on state security agencies’ ability to spy on people and organisations engaged in political advocacy. It does so by (i) unreasonably expanding the notion of national security, (ii) increasing state security agencies’ powers to conduct security vetting and (iii) expanding state security agencies’ powers of mass surveillance. The fact that it was rushed through Parliament towards the end of 2023, with little to no opposition, is deeply concerning.

Perhaps the lowest point of the Sixth Parliament occurred on the morning of 2 January 2022. Just after 5:00 am, the City of Cape Town’s Fire and Rescue services were notified of a fire at the Parliamentary complex. The fire started on the third floor of the National Council of Provinces building and spread via the offices and gymnasium to the National Assembly building which was severely damaged. Crucially, the fire was able to spread in the way that it did due to a lack of proper maintenance and a failure to ensure compliance with building codes and fire prevention basics. Indeed, Parliament’s investigation into the fire revealed “pervasive non-compliance with fire regulations and requirements across multiple facets, including smoke detectors, fire alarm panels, emergency notification systems, sprinkler systems and evacuation route planning.” It has subsequently come to light that the fire was started by Zandile Mafe, who was able to make his way into the precinct following “lapses in perimeter monitoring” occasioned by Parliamentary Protection Services “not working nights or weekends” and the police officer on duty having “fallen asleep” at his desk. Parliament’s reconstruction, now finally underway, should be completed by late 2025, at a cost of R2 billion. As a result of the damage to the National Assembly building, several key sittings of Parliament, including the State of the Nation Address, have been held at the Cape Town City Hall. It was a distinctly saddening moment and perhaps a leitmotif of the faltering nature of our democracy itself.

Despite the wave of optimism accompanying the start of the Sixth Parliament, the body’s performance of its oversight function this term was middling at best. While there were admirable displays of robust accountability, too often parliamentarians deferred to the executive, failed to hold errant officials to account and rewarded unethical behaviour with preferential appointments to senior parliamentary positions. In this way, MPs appeared to choose party over public interest, and thus, the Sixth Parliament remained beholden to blunt political interests. Looking forward, particularly insofar as oversight and accountability are concerned, there is much for the Seventh Parliament to sink its teeth into.