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South Africa

I. Current Situation

Following South African President Cyril Ramaphosa’s declaration of a national state of disaster over COVID-19 on March 17, 2020,[1] the leadership in Parliament (consisting of the National Assembly and the National Council of Provinces, NCOP) held a special meeting.[2] At the meeting, they agreed that after the conclusion of its sitting on March 18 to consider matters “which have specific time-frames and require consideration,” the National Assembly would suspend its business, including the sitting of the Assembly as well as its committee and public hearings, until further notice.[3] Similarly, the NCOP would do the same after its sitting on March 19.[4]

In addition to closing its doors to the public, Parliament is said to be making arrangements to “reduce the number of staff members in the precinct.”[5] However, it does not appear that there is an arrangement in place to delegate the powers and functions of Parliament to a subgroup of members in emergency situations.

Parliament appears to be maintaining some functions. In a statement released on March 21, the Parliament noted that although it had scaled down its work in order to stop the spread of COVID-19, it “is busy processing legislation that will ensure universal access to health care for all.”[6] It also appears that members of Parliament are permitted to travel to their constituencies at this point.[7] No information was located relating to the issue of how members of Parliament would maintain operations if, in addition to restrictions placed on their staff, their movements were restricted.

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II. Emergency Parliament

It appears that an arrangement in the 400-member Assembly in which legislative authority may be delegated to a small group of its members would at least require changing the Rules of the National Assembly and the Constitution.

According to the Rules, “[t]he Assembly may proceed with its business irrespective of the number of members present, but may vote on a Bill or decide on any question only if a quorum is present.”[8]  The quorum clause in the Rules states that,

[i]n terms of Section 53 of the Constitution, except where the Constitution provides otherwise —

(a) a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill; and
(b) subject to Rule 4, at least one third of the members must be present before a vote may be taken on any other question before the Assembly.[9]

The Constitution also imposes quorum requirements for decision making in the National Assembly, stating that

1. Except where the Constitution provides otherwise ­

a. a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
b. at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
c. all questions before the Assembly are decided by a majority of the votes cast.[10]

According to the Rules, “[m]embers may vote only from the seats allocated to them individually in the Chamber.”[11]

The Rules may be suspended by a resolution so long as at least one-third of the Assembly’s members are present at the time.[12] Amending the relevant constitutional provision would require the support of at least two-thirds of the members of the National Assembly and, if the amendment was deemed to be one potentially impacting the provinces or their institutions, a vote in the NCOP as well, where passage requires the support of at least six of the nine provinces.[13]

The situation in the NCOP is relatively less challenging. The NCOP consists of 90 delegates, 10 from each of the country’s nine provinces.[14] According to the Rules of the NCOP, for all decisions of the NCOP, a quorum is established with the presence of at least one-third of its members.[15] The suspension of rules clause of the NCOP Rules provides that the body may “by resolution dispense with or suspend a provision of [the] Rules for a specific period or purpose.”[16] In addition, the Constitution states that all questions before the body are adopted if they receive favorable votes from five provinces.[17] Significantly, the Constitution states that each province is assigned one vote, “which is cast on behalf of the province by the head of the delegation.”[18]

Thus, for the purposes of delegating the functions of the NCOP to a small group of members of the body, it appears that suspending the quorum provision in the body’s Rules would potentially allow for the lowering of the number of members that must be present for the body to make a decision from 30 to nine.

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Prepared by Hanibal Goitom
Chief, FCIL I
March 2020


[1] Wendell Roelf, Update 1−South Africa’s Ramaphosa Declares State of Disaster over COVID-19, Reuters (Mar. 15, 2020), https://perma.cc/GES9-4T59.

[2] Press Release, Parliament of the Republic of South Africa, Change in Parliament’s Programme Due to COVID-19 (Mar. 17, 2020), https://perma.cc/7R2T-RR5K.

[3] Id.

[4] Id.

[5] Id. The precinct is “the area of land and every building or part of a building under Parliament’s control.” Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, § 2 (June 7, 2004), https://perma.cc/BN4K-NDRR.

[6] Press Release, Parliament of the Republic of South Africa, Parliament Urges All to Respect Human Rights in the Midst of this Deadly Pandemic (Mar. 21, 2020), https://perma.cc/UJX8-RTD3.

[7] Id.

[8] Rules of the National Assembly § 45 (9th ed. May 26, 2016), https://perma.cc/BD4D-DTWT.

[9] Id. § 96.

[10] South Afr. Const., 1996, § 53, https://perma.cc/P5HF-6BWY.

[11] Rules of the National Assembly § 103 (9th ed. May. 26, 2016), https://perma.cc/763T-8RSQ.

[12] Id. § 4.

[13] South Afr. Const., 1996, § 74.

[14] Composition of the NCOP, National Council of Provinces, https://perma.cc/CB8A-H8GY.

[15] Rules of the National Council of Provinces § 61 (9th ed. Mar. 2008), https://perma.cc/7872-65QY.

[16] Id. § 3.

[17] South Afr. Const. § 65.

[18] Id.

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Last Updated: 12/30/2020