With accusations of acts of partisanship by various Speakers since the dawn of democracy in South Africa becoming more frequent in recent years, Mr Kamalan Padayachee decided to critically analyse political independence in the role and responsibilities of the Speaker of the National Assembly.

This earned him a Master of Laws in Constitutional Theory, Law and Litigation from UKZN during the May Graduation period.

A biased Speaker would stifle debate in the National Assembly and limit Parliament’s constitutionally mandated obligation to provide oversight of the executive branch of government. Padayachee considered South African legislation and case law, as well as international models for the Head of the Lower House of the legislature.

His research indicated that the Speaker of the Lower House in South Africa was modelled on the Westminster model utilised by Great Britain. This model is characterised by the “fearless independence” of the Speaker; a trait which was imported into South African law with the formation of the Union of South Africa in 1910 and was practised even under the apartheid regime.

Padayachee advocated for South Africa to adopt a position closer to the Westminster model, as an independent Speaker would encourage greater accountability of the executive branch and thus prevent abuse of state power. An independent Speaker strengthens democracy and promotes the protection of citizens’ rights. The Speaker of the National Assembly should distance her/himself from party affiliations and politics to ensure that her/his autonomy is not questioned.

The study found that a recent Constitutional Court judgment delivered in June 2020 (New Nation Movement NPC v President of the Republic of South Africa 2020 (6) SA 257) provides expanded options to ensure accountability and independence. The judgment provides that party affiliation is no longer a requirement to become a Member of Parliament, and by extension, not needed to be elected Speaker. This raises the possibility of requiring that the Speaker resign from her/his political party upon election. The judgment also triggered an analysis of the current electoral system, with civil society organisations advocating for a transition to a constituency-based electoral system. Such a system provides another level of accountability as constituents themselves could vote to remove a Speaker rather than relying on the National Assembly to pass a motion of no confidence in her/him.

Padayachee said that his interest in Constitutional Theory, Law and Litigation stems from his love of history: ‘History offers many examples of how countries or states can be governed. Constitutionalism provides a mechanism for the distribution and limitation of power, thus preventing abuse of power while protecting citizens’ rights. History tends to repeat itself; therefore, one can learn how previous generations solved abuse of state power, and whether or not the solution was effective.’

He added that constitutionalism adds to the legitimacy of government actions and the Constitution as a document provides a standard to which government must be held accountable by its people. The degree of state capture revealed under (then) Deputy Chief Justice Zondo highlights how desperately South Africa requires citizens to participate in the democratic process and be aware of constitutional norms and principles.

Padayachee stayed focused on the end goal despite the challenges brought about by the COVID-19 pandemic and the social unrest in KwaZulu-Natal during 2020/21. ‘Completing the coursework provided me with insights that I had not considered before and broadened my knowledge.’ The qualification helped me to connect with academics and practitioners and reinforced their confidence in my writing,’ he said.

Next on his agenda is the completion of his articles of clerkship by June 2023 and completing the Legal Practice Council’s Competency-Based admission examinations. This will enable him to be admitted as a legal practitioner. He is also considering publishing his research findings with his supervisor Professor Warren Freedman of the School of Law at UKZN.

Words: Hazel Langa

Photograph: Abhi Indarajan