The opposition party argues that the speaker failed to apply the established test for calling a secret ballot when she declined to do so
The African Transformation Movement (ATM) has approached the high court on an urgent basis to have the parliamentary vote in which President Cyril Ramaphosa was spared an impeachment inquiry set aside.
The ATM is asking the court not only to declare the speaker’s decision to refuse an opposition request for a secret ballot unlawful and unconstitutional, but to substitute it with a directive that members be allowed to vote in this manner on the report of the Ngcobo panel.
The panel, headed by former chief justice Sandile Ngcobo, recommended that Ramaphosa be subjected to a section 89 inquiry after concluding that information placed before it by the ATM and other opposition parties in relation to the Phala Phala scandal pointed to potential breaches of the law warranting removal from office.
The report was debated in the National Assembly nine days ago and rejected by a margin of 214 votes against 148. The vote was conducted through a roll call and the majority of ANC members heeded party instructions not to support it.
The secret ballot was requested by the ATM, which argued that members of the ruling party risked expulsion, or worse, if they voted in favour of the report, which was debated mere days before the start of the ANC’s elective conference where Ramaphosa sought and won re-election as party leader.
In a founding affidavit, ATM leader Vuyo Zungula said speaker Nosiviwe Mapisa-Nqakula did not apply the correct legal test when she decided to refuse the request for a secret ballot.
“In rejecting the ATM’s request for a closed ballot, and prescribing an open ballot procedure, the speaker required that there be ‘exceptional circumstances’ for her to deviate ‘from the principle of openness’,” he said.
“The speaker is wrong because the principle of openness is not the default position, and therefore cannot be ‘deviated from’.”
He added that there was no onus on any member of the National Assembly to establish exceptional circumstances before a request for a closed ballot was agreed.
“None of this is novel or controversial.”
Zungula noted that the appellate court took this view a year ago when the ATM challenged a decision by then speaker Thandi Modise to refuse its request for a secret vote on a motion of no confidence in the president and his cabinet. The ATM lost in the high court but prevailed in the supreme court of appeal (SCA).
“The SCA explained that there is no default position or onus,” Zungula said.
The court in December 2021 set aside Modise’s decision because, it found, she erred in insisting that the requesting party had to prove exceptional circumstances. In that instance, it referred the decision back to Mapisa-Nqakula as her successor, who reached the same conclusion. She again denied a secret ballot when the Democratic Alliance last year brought a motion of no confidence in Ramaphosa’s cabinet.
In this application, the ATM is asking the court to impose its own decision.
Zungula argued that repeated instances of the speaker failing to adopt the correct approach in law meant there was little hope she would do so if given another opportunity..
“The speaker has now made the same mistake. She has not done so once, or even twice. This is the third time that the speaker has exercised her powers in a manner inconsistent with the SCA’s judgment in ATM1,” he said.
“She has adopted a course of action that stymies parliamentary accountability and protects the political interests of the political party of which she is a member.”
Mapisa-Nqakula’s decision was irrational, he continued, because in applying her mind the speaker was bound to consider which method of voting would best give effect to the legislature’s constitutional duty to hold the executive to account.
In defending her decision before voting commenced, she said a parliamentary environment could never be free of political tension “either between or within parties”.
“I do not believe that the atmosphere is so toxified or so highly charged that members of the National Assembly would be prevented from exercising their vote on this question in accordance with their conscience using an open voting procedure,” she said.
But Zungula countered that it was hard to imagine a more toxic atmosphere than that which prevailed on the day. He said the speaker could not rationally reach the conclusion she did because she had evidence that ANC MPs were threatened with disciplinary action if they defied their whip, and had acted in bad faith by camping on a predetermined position.
The correct test was one that bore in mind the constitutional imperatives of accountability, openness and accountability but she has repeatedly failed to apply it and committed the same error in law.
Hence her decision tainted the lawfulness of the proceedings and required the report to be reconsidered.
It is an exceptional remedy for a court to substitute a decision of the executive with its own but the ATM argued that in this instance it is warranted.
“Substitution exists as a remedy precisely because the law recognises that there are instances where a decision-maker refuses to get it right. This is such a case.”
Moreover, the court was, as a guardian of the Constitution, well-placed to decide whether an open or closed ballot would best give effect to the prescripts of the constitution in the current political climate.
Ramaphosa won 56.6% of votes in the ANC’s presidential contest, a fortnight after briefly contemplating resigning because of the Ngcobo report. He has filed an application
to the constitutional court to have it set aside.
In his court papers, the president argued that the panel applied the wrong test in weighing whether the evidence before it merited an impeachment inquiry. The ATM is opposing this application.
The constitutional court has yet to indicate whether it will grant Ramaphosa direct access for legal review.
The ATM has asked the high court to hear its application on the validity of the ballot on 23 January.