The high court in Cape Town on Wednesday reserved judgment in the application by the African Transformation Movement (ATM) to force a secret ballot during the first motion of no confidence against President Cyril Ramaphosa.
The ATM, an opposition party with two MPs and allegiances to the ANC’s radical economic transformation faction opposed to Ramaphosa, brought the motion in February last year and went to court in response to Speaker Thandi Modise‘s refusal to allow MPs to vote in secret.
Its motion was brought on the basis that the president had misled Parliament on load-shedding, mismanaged the economy and allowed corruption, unemployment and the waste of state resources at parastatals to escalate on his watch.
The ATM told Modise that in an open ballot ANC MPs would be constrained to desert their conscience and their democratic duty to hold the president to account because they may have benefited from the CR17 campaign or fear losing their livelihoods, especially those who served as ministers.
Worse still, political vigilantism meant they might risk their lives if they defied the party whip on the vote.
Modise rejected their call, saying they had given “speculative reasons” with no factual basis. She could, she argued, only be swayed by cogent and compelling proof of their claims.
The party then headed to court to overturn her decision on the basis that it fell short of the standard set by the Constitutional Court ruling in the United Democratic Movement case.
There the apex court held that, though the National Assembly rules were silent on the matter, the Speaker had the discretion to allow a secret ballot upon considering the prevailing political climate and other factors.
Anton Katz SC, for the ATM, argued that the court had meant these to include the real possibility of corruption and the adverse political consequences MPs may face for not following the party line in a vote.
He argued the apex court had directed the Speaker to weigh up whether the political atmosphere at the time of the motion was “generally peaceful or toxic and highly charged”.
Advocate Kameel Premhid, for Modise, countered that the ATM’s request to the Speaker was poorly motivated as it merely said it was a matter of “public record” that there was tension within the ruling party and that Ramaphosa faced factional assaults on his leadership.
It, therefore, did not discharge the onus of proof and did not allow Modise to come to another conclusion.
“All it provided was speculation,” he said.
“The applicant, with respect, is trying for whatever reason to force a badly motivated request to yield a different result under the guise of a judicial review. This is unacceptable.”
Premhid also argued that the high court was not competent to decide the case because it fell within the exclusive jurisdiction of the Constitutional Court, as section 167(4) dictated that only the apex court could decide if Parliament had carried out its obligations.
He said exclusive jurisdiction was triggered by the ATM’s argument that MPs could only vote according to conscience if they were allowed secrecy and that, failing that, Parliament could not perform its constitutional duty of holding the president to account.
Katz disagreed, arguing that the case concerned not a decision by Parliament, but by Modise.
The parties were not told when to expect a ruling.
Votes of no confidence were a fixture of Jacob Zuma’s nine years as president. In 2017, the UDM moved a motion of no confidence after he axed Pravin Gordhan from Cabinet and approached the Constitutional Court on an urgent basis after then speaker Baleka Mbete refused to call a secret ballot.
The debate on the ATM’s motion against Ramaphosa was delayed by the arrival of the Covid-19 pandemic and eventually set down for early December, when the parties agreed to postpone it again pending the outcome of the litigation.
In the year since it was tabled, the tension in the ruling party has arguably escalated following the indictment of ANC secretary general Ace Magashule on corruption charges stemming from the Free State asbestos audit scandal.
Magashule and his allies are now resisting party instructions for him to step aside from his position ahead of his next court appearance on 19 February.