Here is the letter:
Yesterday, the newly sworn in members of the national assembly (of which I am privileged to be one) listened to Chief Justice Mogoeng Mogoeng brush aside a point of order from Corne Mulder MP on the procedure for the election of the Speaker. Mulder pointed out the rules of the election, drawn up by the Chief Justice himself, state that MPs “must” exercise their vote. During the vote it became clear that a significant minority of MPs were abstaining, hence Mulder’s point of order. The Chief Justice responded by saying that in our democratic system, voters were not compelled to vote but could exercise their choice to do so, and the same applied here, so where it was written “must” we were to interpret it as “may.” To which Mulder, raising a laugh from the House, suggested we apply the same interpretation when asked to pay our taxes.
To those who dismiss this as mere semantics, I refer them to the Free Market Foundation’s court action challenging the constitutionality of Section 32 of the Labour Relations Act, concerning the rules governing bargaining council agreements. The FMF is requesting the Minister of Labour to replace the word “must” with “may”, thus freeing her from being compelled to extend these agreements to all parties.
Can the Chief Justice’s interpretation of his own rules yesterday be regarded as setting a precedent in law, and if so may the FMF withdraw its action, or must it still go ahead?