Chief Justice Mogoeng Mogoeng's order garnered praises and shouts of celebration inside the court.
The Constitutional Court has ordered that Speaker of the National Assembly Baleka Mbete has the constitutional power to prescribe a secret ballot vote for a motion of no confidence in the president.
The judgment was penned by Chief Justice Mogoeng Mogoeng who, on Thursday, readout the unanimous decision the justices had reached.
In court papers, Mbete argued that she did not have the powers to institute a secret ballot for a motion of no confidence in the president, saying that the Western Cape High Court had made a ruling to that effect in a previous case.
The Concourt said differently. It argued that Mbete has such powers but these powers “belong to the people” and they cannot be exercised for the interests of the speaker or their party. The Constitution provided no clarity on when a secret ballot or open ballot is appropriate, but the Concourt said the speaker has the power to make such a decision.
“That is her judgment call to make, having due regard to what would be best procedure to ensure that members [of Parliament] exercise their oversight powers most effectively,” Mogoeng read from the judgment.
The significance of secret ballot was also described by the Concourt because it would allow MPs to exercise their vote freely. Previously, the ANC has said its members may not vote against one another, but the Concourt said this is not established in the Constitution.
“As in the case with general elections, where a secret ballot is deemed necessary to enhance the freeness and fairness of the elections, so it is with the election of the president by the National Assembly. This allows members to exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others,” the judgment reads.
Concourt said rules of the National Assembly also empower the speaker to decide on a secret ballot.
The power lies with the speaker
The United Democratic Movement (UDM) had requested that the Concourt decide on the date for the motion of no confidence and order the speaker to decide on a secret ballot. The Concourt said, however, that this would be a violation of the separation of powers.
“The United Democratic Movement’s request for a motion of no confidence in the president to be decided by secret ballot is remitted to the speaker for her to make a fresh decision,” the judgement reads.
In an order that garnered praises and shouts of celebration inside the court, the Concourt also ruled that the president and the speaker must pay the costs of the UDM, the Economic Freedom Fighters, the Inkatha Freedom Party and the Congress of the People – the parties who brought the application to the court.
The orders of the court were as follows:
1. The UDM is granted direct access.
2. It is declared the speaker has the “constitutional power” to prescribe a vote by secret ballot in a motion of no confidence against the president.
3. The speaker’s decision in April 2017 that she does not have such power is set aside,
4. The UDM’s request that the court order a secret ballot in the motion of no confidence is remitted to the speaker,
5. The speaker and the president will pay the costs for the applicants including costs of two counsels where necessary.