A mistake on a point of law by Speaker Thandi Modise meant an appeal court may well overturn her decision to refuse a secret ballot in an upcoming no-confidence vote against President Cyril Ramaphosa, the African Transformation Movement (ATM) argues in its latest court papers on the matter.
The ATM has asked the Western Cape High Court for leave to appeal its ruling last week that Modise had applied her mind when she refused the ATM’s repeated demands for a secret ballot.
Though Modise won the case, acting judge James Lukheleni rejected her argument that anybody wanting her to deviate from the default position of open voting in the National Assembly had an onus of proof to meet before the request could be granted.
When she refused the request from the ATM — a tiny party with only two MPs but links to the restive RET faction in the ANC — Modise said party leader Vuyolwethu Zungula had given only vague reasons why he wanted MPs to vote in secret.
The ATM’s argument went like this: because of a “toxic” political atmosphere in the legislature, ANC MPs would be constrained to desert their consciences and their democratic duty to hold the president to account.
Governing party lawmakers would be forced to vote along party lines because some may have benefited from the CR17 campaign that culminated in Ramaphosa’s election as ANC leader, while others may fear losing their livelihoods, especially those who served as ministers, the party said.
Worse still, it argued, some lawmakers may risk losing their lives to “political vigilantism” if they defied their whip.
But Modise said it provided her with no proof of its claims that an open ballot would mean ruling party MPs could not follow their consciences.
The matter has dragged on for more than a year since the ATM filed its motion of no confidence in the president in February last year. It was first delayed by the Covid-19 pandemic, then by the ATM rushing to court in December last year.
The party did so after Zungula in November pressed Modise to change her mind.
Modise said all things considered, she had no reason to do so.
The court rejected the ATM’s argument that Modise had failed to apply her mind when she dismissed the party’s request.
Judge Lukheleni said the courts must guard against judicial overreach in cases such as these and could only interfere if the speaker had exercised her power frivolously or unfairly or failed to apply her mind before coming to a decision.
It was his view that the correspondence between the speaker and the ATM clearly showed she had applied her mind, hence the decision stood as unimpeachable.
But in the party’s application for leave to appeal, Anton Katz SC argued that if Modise was wrong in law, her decision deserved further scrutiny.
There was a chance that another court could set aside the ruling for the reason that once she made a fundamental error in law, she did not approach the request from the ATM in the right frame of mind.
“The Speaker’s decision to reject the request could as a matter of law not be regarded as having been made rationally once she took, in the words of the honourable court, ‘the inaccurate and erroneous’ view concerning the issue of onus.”
But Katz went further and argued that the high court erred in holding that the Constitutional Court found in a case brought by the United Democratic Movement (UDM), while Jacob Zuma was president, that the default position is that motions of no confidence against the president must be decided by open ballot.
In fact, he said, the apex court explained in some detail the factors the speaker must consider when taking a decision on this.
This included giving due regard to the real possibility of corruption and whether members of the chamber could vote according to conscience, to hold the executive to account, without exposing themselves to “illegitimate hardships”.
The recent wrangling within the ANC caucus on whether the party’s MPs had to vote in support of a motion to start impeachment proceedings against public protector Busisiwe Mkhwebane were illustrative, Katz said.
“It would certainly not be appropriate for a court to close its eyes to the sharp factions in the governing party, and importantly how that creates a ‘toxic’ environment in which a motion of no confidence in the president is to be conducted,” he said.
The ATM brought the motion on the basis that it believes Ramaphosa has 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.
An open ballot could spell political trouble for Ramaphosa as his battle with secretary general Ace Magashule and other party members accused of corruption escalates, following a resolution that they step aside within 30 days.
But if the ATM wins leave to appeal, it means that a court decision and the actual no-confidence vote may be months away still.