LEGAL OPINION [CONFIDENTIAL]
LEGAL ADVISERS: Adv F S Jenkins
REFERENCE NUMBER: 31/06


PARLIAMENTARY LEGAL SERVICES OFFICE


MEMORANDUM [CONFIDENTIAL]


TO: Chairperson: Joint Constitutional Review Committee [Or E A Schoeman, MP]

COPY: Secretary

FROM: Legal Services Office

DATE: 15 February 2006



SUBJECT: Constitutional provision for Leader of the Opposition


1. Your request for advice on the correspondence received in regard to the constitutional provision relating to the Leader of the Opposition refers.


Background


2. Section 57(2)(d) of the Constitution provides that the rules and orders of the National Assembly (NA) must provide for the recognition of the leader of the largest opposition party in the Assembly as Leader of the Opposition.


3. Pursuant to the above, NA rule 21 provides that the "leader of the largest party in the Assembly that is not in government must be recognised as Leader of the Opposition."


4. The minutes of the meeting of the NA Rules Committee, dated 14 October 2005, indicate that the Joint Constitutional Review Committee should consider the "appropriateness" of the title "Leader of the Opposition". The main concern with the title, in my understanding of the minutes, is that the position is confused with the Leader of the Official Opposition. The two sides of this anomaly is, on the one hand, that the present largest opposition party feels that their leader should enjoy the right of response to the Presidentís State of the Nation Address, as is apparently the case in systems dominated by two political parties. On the other hand, other opposition parties feel that the title creates the impression that the Leader of the Opposition is also their leader.

5 It seems further that the NA table is preparing a research document on this topic. I have not ha dhte advantage of reading this document if it is already finalized.

6 During its meeting on 13 December 2005, the Subcommittee on the Review of the Na Rules decoded to recommend that NA rule 21 be amended to provide that "the leader of the largest opposition party in the Assembly that is not in government is the Leader of the Opposition".

Purpose of section 57(2)(d)

7. I assume that as the issue has been referred to the Committee an

opinion on the review of section 57(2)(d) is required.

8. Section 57(2)(d) requires that the rules and orders of the NA provide

for the recognition of the leader of the largest opposition party in the NA as leader of the Opposition . I am not aware of any jurisprudence in regard to this provision. (Reference is made to participation in the political process by minority parties in Ex parte Chairperson of the Constitutional Assembly: In re certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) at paras 222-228, without specifically dealing with section 57 (2) (d). Steven Budlender, writing in Constitutional Law of South Africa (2nd ed. 17-37) refers to section 57(2)(d) without discussing it.

9. However, the context of the provision relates to the constitutional requirements that the rules and orders of the NA also provide for the participation in the proceedings of the NA and its committees of minority parties represented in the NA in a manner consistent with democracy (section 57 (2)(b)), as well as financial and administrative assistance to each party represented in the NA in proportion to its representation (section 57(2)(c)). The Constitutional Court has said that the purpose of section 57(2)(b) is to ensure that minority parties can participate meaningfully in the deliberative processes of Parliament (Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) at par 18). Such interpretation is also consistent with the paramount value that the South African state is founded on a multiparty system of democratic government (section 1 (d)).

10.ln my opinion section 57(2)(d) should be interpreted as a specific provision relating to opposition politics that supports the paramount value of multi-party democracy. The effect of the section 57(2)(d) is to unconditionally enshrine opposition politics. In other words, even if a mere one per cent of the suffrage supports an opposition party and 99 per cent supports the majority party and other parties who are in some form of consensus with the majority party, the opposition is still constitutionally recognised. However, it should not be construed as reducing the status of other minority parties, regardless of whether these are in opposition to the majority party or not.

Opinion

11. Section 57(2)(d) is instrumental in ensuring opposition politics in a multi-party democracy. It is neither suggested, nor recommended that the section be removed or amended. The issues seems to be:

12 Although a constitutional amendment could be considered to remedy the concerns highlighted above, any amendment to the Constitution should only be used in exceptional circumstances. In any event this is a policy matter on which I am not qualified to comment.

13. Section 57(2)(d) requires the rules and orders of the NA to set out the scope of recognition of the Leader of the Opposition. In my opinion, any confusion regarding the meaning of Leader of the Opposition could be remedied in the NA Rules.

. Not enough recognition is given to the Leader of the Opposition;

and

. The title "Leader of the Opposition" is confusing.

12. Although a constitutional amendment could be considered to remedy the concerns highlighted above, any amendment to the Constitution should only be used in exceptional circumstances. In any event this is a policy matter on which I am not qualified to comment.

13. Section 57(2)(d) requires the rules and orders of the NA to set out the scope of recognition of the Leader of the Opposition. In my opinion, any confusion regarding the meaning of Leader of the Opposition could be remedied in the NA Rules.

Parliamentary Legal Adviser

4

--

---

- -- - - -------