Parties gear up for ConCourt battle

The ANC has nothing to fear if the motion of no confidence in President Jacob Zuma is decided by secret ballot, Julius Malema says in court papers this week.

The Economic Freedom Fighters’ (EFF) leader added his voice in support of the United Democratic Movement’s (UDM) application to the Constitutional Court, arguing that the Constitution requires the motion to be decided by secret ballot.

After two days of huge protests last week, the battle to remove Zuma has now shifted to South Africa’s highest court. This week the court continued to receive affidavits from political parties, the speaker and the president. An April 21 deadline has been set for all papers to be filed.

In the EFF’s papers, Malema says former president Kgalema Motlanthe and speaker Baleka Mbete were elected to their respective positions by secret ballot in Parliament. In both cases, the ANC still secured a majority.

“It is clear that the mere fact that an election is by secret vote per se does not inhibit a party from canvassing its position with its MPs. Nor is it determinative of the outcome … nothing is to be feared from a secret ballot,” he says.

But before the court looks at the legal merits of the case, it must decide whether it will entertain the case at all. The first hurdle the UDM will have to clear is to convince the court either that it is the only court that can hear the case, or that there are exceptional circumstances to warrant it.

Mbete and Zuma, in their court papers, reject the UDM’s argument. The speaker says the UDM not only failed to exhaust internal Parliamentary remedies but has also failed to argue for exceptional circumstances that justify direct access to the court.

“This application has no merit; it does not fall within the exclusive jurisdiction of this court; it does not meet the requirements for direct access; it is calculated to embroil this court in a political controversy … and it is grounded on an assumption that [ANC MPs] are weak-kneed, timid, cowardly, unprincipled and spineless persons.”

The UDM says the Constitution requires that a secret ballot be used when the president is elected by the National Assembly. It is therefore implied that, when the president is forced to resign, it must adopt the same procedure. Alternatively, the Constitution gives Mbete the discretion to allow a secret ballot.

In his affidavit, UDM leader Bantu Holomisa says a secret ballot enables members of the National Assembly to carry out their duties without fear of reprisals and removals and enables them to stay true to their prescribed oath. When it comes to a motion of no confidence, members of the National Assembly owe their first duty to the Constitution and not to political parties, Holomisa says.

But Zuma rejects this and says the Constitution only prescribes a secret ballot for electing the president when there are two or more candidates, as in the case of Motlanthe, when the Democratic Alliance nominated its own Joe Seremane as an alternative. When there is one candidate — to be appointed or removed — there is no secret ballot.

In any event, the procedures for voting in and voting out a president are very different, Zuma says. 

He argues that in a proportional representation system, in which MPs are chosen by their parties, MPs are accountable to their parties and the party is accountable to the electorate.

The UDM is in effect requiring the court to “subvert the rights of the majority party in Parliament [and] deny the ruling party the benefit of its majority status,” Zuma says.

 

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