Modise knocks ‘vexatious’ appeal by ATM
• Speaker heads to court in bid to end fray with party
Parliament’s speaker says an appeal of a case she won is so “vexatious” it should be dismissed outright and with costs. Thandi Modise filed papers in the Western Cape High Court on Friday calling for an end to her fray with the African Transformation Movement (ATM), which lost a case against her in March. The ATM took the speaker to task over her refusing a secret ballot in a motion of no confidence against President Cyril Ramaphosa.
Parliament’s speaker says an appeal of a case she won is so “vexatious” it should be dismissed outright, and with costs.
Thandi Modise filed papers in the Western Cape High Court on Friday calling for an end to her fray with the African Transformation Movement (ATM).
The ATM lost a case against Modise in March. Now, the party wants a chance to appeal against the decision. The opposition party took Modise to task over her refusing a secret ballot in a motion of no confidence against President Cyril Ramaphosa.
In February 2020, the ATM pursued the motion of no confidence by secret ballot, raising issues such as corruption and a toxic climate in the governing party. Modise wrote to the ATM asking for further details, which the court found were not forthcoming.
Acting judge president James Dumisani Lekhuleni vindicated Modise’s actions on March 26 2021. While the ATM replied to Modise’s written request for details, the judge found the party’s response “was speculative, contrived and based on unsupported suppositions”.
Lekhuleni ruled Modise’s decision on an open and not closed ballot “was based on sound reasons and not on illegitimate motives and considerations” as claimed by the ATM.
“I also find that she also advanced the applicant with the reasons for her decision for ordering an open ballot and declining the application for a secret ballot. Her decision is therefore unimpeachable,” said Lekhuleni.
The ATM, which holds two seats in the National Assembly, is the first and only party to initiate a vote of no confidence in President Cyril Ramaphosa.
In challenging the March 2021 ruling, the ATM has launched an assault on two fronts. First, it argues there are reasonable chances of success since another court might have found differently than the Western Cape High Court.
Second, the ATM insists there are compelling reasons for an appeal because Modise made such a material error in law it brings the entire matter into question. the ATM asserts Modise made a serious error on onus.
At issue is the question of who bears the responsibility (onus) of motivating for a closed ballot? The ATM insists Modise was wrong to think because the ATM wanted a secret ballot in the motion of no confidence, the ATM bore onus and was obliged to provide compelling reasons.
The ATM argues Modise was mistaken on a material point, in thinking onus lay with it. The party contends this is a serious mistake in law and it must be given the chance to appeal Lekhuleni’s judgment.
“For a decision-maker to wrongly think that she needed to be persuaded one way or the other and that a default position existed is so fundamental an error of law that the decision is, per se, vitiated for that reason alone. For the above reason it is submitted that there are strong prospects of success on appeal,” the ATM has argued.
Modise insists the ATM is wrong in arguing she made a material error in law. Modise has submitted that the ATM’s application for leave to appeal is completely without merit and has motivated that the party pay costs should the judge dismiss the application.
Whether or not the appeal succeeds, nothing in law stops the ATM (or any other party) from initiating a new vote of no confidence by secret ballot.
DECISION ON AN OPEN AND NOT CLOSED BALLOT WAS BASED ON SOUND REASONS AND NOT ON ILLEGITIMATE MOTIVES