Can Parliament dissolve if enough MPs resign?
10 August 2017
Cape Town - Economic Freedom Fighters (EFF) leader Julius Malema has suggested Parliament can be dissolved if 51 members resign from Parliament. But can it?
The Democratic Alliance (DA) and United Democratic Movement (UDM) say no.
DA leader Mmusi Maimane on Wednesday called for the dissolution of Parliament following the failed motion of no confidence in President Jacob Zuma via secret ballot.
The party would table a motion on Thursday to be voted on at the earliest opportunity.
Malema on Wednesday responded to Maimane's call on Twitter, essentially taunting the DA to put its money where its mouth is.
"U don't need a motion @Our_DA, you can do it alone [sic]. If @EFFSouthAfrica had more than 51 members, we were gonna do it alone. Stop bluffing," he tweeted.
Malema was citing Section 46 of the Constitution, which says the National Assembly needs to consists of no fewer than 350 members, and no more than 400 women and men elected as members.
The section however, says nothing about what happens if there are less than 350 members in Parliament. It also does not say that Parliament must be dissolved or that early elections should be called.
Democratic Alliance Chief Whip Mike Waters said Malema's suggestion was not true, saying there was only one way to dissolve Parliament, covered by section 50 of the Constitution.
"That's not accurate at all. Parliament has to pass a motion to dissolve," Waters said.
"If the DA had to resign from Parliament, the ANC would have the vast majority."
United Democratic Movement leader Bantu Holomisa also said the suggestion was not accurate.
He believed that if the DA were to resign from Parliament, the remaining seats would be split between the rest of the parties according to the proportional representation system.
'Constitution quite clear'
Director of the Centre for Constitutional Rights, Phephelaphi Dube said the Constitution states plainly what is required to dissolve Parliament in section 50.
"The Constitution is quite clear on when and how Parliament is dissolved. It can only be dissolved by a vote, and that vote needs to pass [with majority]."
Three years would also have needed to have passed since the Assembly was elected.
The other scenario is if in the event a vacancy arises in the presidency, and no new president is elected by the National Assembly within 30 days, the courts would then intervene to ensure early elections are called.
Dube said Parliament can still function with less than 350 members, but the ability to pass bills and legislation, especially ones that need a two-thirds majority, would be compromised.
She said Speaker of Parliament Baleka Mbete on Tuesday, made it clear that the thresholds required for voting purposes were linked to the number of seats in Parliament, not individual members.
Dube said the suggestion for MPs to resign was unprecedented and the law had not been tested in reality.
Individual members of Parliament who resign can be replaced, but if entire parties resign, they could be forfeiting their seats in Parliament until the next general elections, according to the Electoral Act.
EFF national spokesperson Mbuyiseni Ndlozi could not be reached for comment by News24 via phone or text message.