The Western Cape high court on Friday granted the African Transformation Movement (ATM) leave to appeal its earlier ruling dismissing the tiny opposition party’s bid to overturn speaker Thandi Modise’s refusal to call a secret ballot on a motion of no confidence in President Cyril Ramaphosa.
Judge James Lukheleni said he was persuaded to allow the ATM to take the matter to the supreme court of appeal because it was in the public interest that clarity be reached on the contentious issue as to whether votes of this nature should be open or cast in secret.
“It is axiomatic that a motion of no confidence in the head of state and head of the executive is an extremely important matter. If clarity could be reached on the subject, that would strengthen our constitutional democracy.”
He said the case raised important issues as to how the executive should operate and as to how the speaker should exercise her discretion on the voting procedure when a motion of no confidence against the president is tabled.
The motion of no confidence the ATM filed in February last year is the first Ramaphosa faces in his three years as president, in contrast to the many weathered by his predecessor, Jacob Zuma.
The ATM approached the high court after unsuccessfully petitioning Modise to reconsider her initial refusal to allow a secret ballot.
It argued that the current political atmosphere was so toxic that ruling party MPs would risk their careers, and possibly their lives, if they were to defy party instructions to support the motion.
The ATM has only two seats in the National Assembly but has links to the ruling party’s so-called Radical Economic Transformation faction led by recently suspended secretary general Ace Magashule and, as such, the appeal court ruling could have critical implications for the president.
Modise’s stance has been that the default position is that voting is open, and that anybody who wishes to persuade her otherwise in a particular case bore an onus of proof to be met before the request could be granted.
Though Modise won the case, Lukheleni in his judgment in late March rejected this argument by the speaker’s counsel.
He merely faulted the ATM’s argument that she had failed to apply her mind when considering its request.
This allowed the ATM’s lawyer, Anton Katz, to argue in the application for leave to appeal that if Modise was wrong in law, her decision on the facts of the matter 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, he submitted.
“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.”
Kameel Premhid SC, for Modise, counter in his heads of argument that in this case, whether or not there was an error of law, was not material to the decision the speaker reached.
Katz however, 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, while Jacob Zuma was president, that the default position is that motions of no confidence against the president must be decided by open ballot.
He said the apex court explained in some detail the factors the speaker must consider when taking a decision on this matter.
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”.
Katz said this was amply demonstrated by the recent tussle about the ANC’s instructions regarding voting on the motion to begin impeachment proceedings against public protector Busisiwe Mkhwebane.
In that instance, Luthuli House faced resistance from members who wanted to follow Magashule’s instructions not to support the motion.
Premhid had argued that the ATM had never in the high court attacked the argument of onus, but had simply, unsuccessfully, contended that Modise’s decision not to allow a secret ballot was irrational.
“In other words, the single ground of appeal that the applicant seeks to pursue has never once been pleaded by it.”
He said the constitutional court had rejected this kind of conduct, insisting that a litigant should stick to the case it set out in its court challenge.
In his papers opposing leave to appeal, he hence did not cross-appeal the high court’s finding that the Speaker’s approach regarding the onus was mistaken.