Probe: Former Chief Justice Sandile Ngcobo heads a panel on whether President Cyril Ramaphosa’s Phala Phala scandal demands an impeachment inquiry. (Alon Skuy/Gallo Images)
In reply to the African Transformation Movement’s court bid to have the vote that spared President Cyril Ramaphosa an impeachment inquiry set aside on review, the speaker has questioned the case law on how a request for a closed ballot must be considered.
In December, MPs rejected a report by a panel headed by former Chief Justice Sandile Ngcobo that found Ramaphosa had a case to answer in relation to the Phala Phala scandal by 214 votes to 149.
The vote was conducted through a roll call and the majority of ANC members heeded party instructions not to support the report, which had brought Ramaphosa to the brink of resigning.
The ATM contends that the speaker’s decision to reject its demand for a secret ballot was irrational and has asked the Western Cape high court to order that the vote be repeated, this time in closed fashion.
It has argued that it was pointless to remit the decision back to the speaker because she has repeatedly failed to apply the law correctly when confronted with this question.
The issue has been litigated extensively and the ATM appears to have legal precedent on its side.
In 2021, it prevailed on appeal after challenging a decision by Thandi Modise, who was speaker then, to refuse its request for a secret vote on a motion of no confidence in the president and his cabinet.
The supreme court of appeal (SCA) rejected the speaker’s submission that, when confronted with such a decision, the requesting party had to provide proof that there were exceptional circumstances that demanded she deviate from the “default” principle of openness.
The court said there was no default position of either an open or secret ballot, but instead: “The slate is clean.”
The speaker must therefore adopt a neutral stance and consider what would best enable MPs to exercise their oversight powers, acting in service to citizens, not the political party to which they belong.
ATM leader Vuyo Zungula argued in his founding affidavit that the speaker had not applied the correct test when she ordered that the vote proceed by open ballot, after rejecting the party’s argument that members of the ruling party risked expulsion, or worse, if they flouted the party line and voted in favour of the report.
By communicating to him that there was no cause for her to depart from the principle of openness, she had repeated the same error in law penalised by the appellate court. While addressing the National Assembly programming committee, she had been more explicit and said there were no “exceptional circumstances” to warrant a secret ballot.
“The speaker is wrong because the principle of openness is not the default position and therefore cannot be ‘deviated from’… None of this is novel or controversial.”
But in her answering affidavit, speaker Nosiviwe Mapisa-Nqakula has argued that she was advised the SCA may have erred.
“Having taken further legal advice from senior counsel not involved in that matter, I am advised that the conclusion that the SCA reaches about the required ‘clean slate’ was likely incorrect.”
Even if one were to assume it was correct, she added, the judgment pertained to the process followed when the assembly was voting on a motion of no confidence.
“It does not follow that the same approach applies to motion of impeachment under section 89 of the Constitution, or as in this case, preliminary procedural steps as part of the section 89 process.”
The vote came days before the start of the ANC’s elective conference where Ramaphosa sought and won re-election as party leader. The ATM, in motivating for a closed ballot in missives to the speaker, said ruling party MPs who planned to support an impeachment inquiry had received death threats.
The speaker took the position, reiterated in her court papers, that the National Assembly was never free of political contestation, between and within parties, and that the police would deal with the matter of death threats.
“Despite the serious political contestation at the time, including within the political party to which the president belongs, I independently assessed that the atmosphere was not so toxic or highly charged that members of the National Assembly could be prevented from exercising their vote on the question in accordance with their consciences using an open voting procedure.
“This was borne out by the wide variety of strong views that were freely and publicly expressed by members before the vote.”
There was further proof, she said, in the fact that a handful of MPs made good on the promise to vote in favour of the report.
She had stressed her decision was informed by her belief that, given the importance of the vote, a transparent process would enhance public trust in parliament and help to hold MPs accountable to the people who elected them because it would be plain for all to see how they voted.
The contention that she made errors in law was unfounded because she had in fact followed the approach laid down by the ATM judgment and had exercised her discretion without presupposing a default position or imposing an onus on the requesting party. Arguing otherwise was to take the words “deviate from the principle of openness” — employed in her communication with Zungula — out of context.
Furthermore, the applicants failed to demonstrate that the ostensible error in law had materially influenced her decision to decree voting by open ballot.
The speaker went on to add that a secret ballot would increase the risk of bribery or other means of persuading members to vote in a particular way.
“In my independent assessment, the prescription of voting by secret ballot in the circumstances would have increased the risk of corruption,” she said.
“This would, in turn, have heightened the risk of renewed state capture by the network of persons, entities, government office bearers and state officials that had been involved in the conduct investigated by the state capture commission.”
Zungula has argued that it was hard to imagine a more toxic atmosphere than that which prevailed on the day.
He said the speaker could not rationally reach the conclusion she did because she had evidence that ANC MPs were threatened with disciplinary action if they defied their whip.
Her error tainted the lawfulness of the proceedings and required the report to be reconsidered.
It is an exceptional remedy for a court to substitute a decision of the executive with its own but the ATM argued that in this instance it was warranted.
“Substitution exists as a remedy precisely because the law recognises that there are instances where a decision-maker refuses to get it right. This is such a case.”
The speaker countered that it would be judicial overreaching as the ATM is seeking “sweeping relief which would impermissibly intrude into the heartland of parliamentary authority”.
The matter is due to be heard by a full bench on 13 and 14 February.
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