UDM puts the ConCourt on the spot
It’s a tough challenge to weigh up constitutional imperatives with the dangers of judicial overreach
In 2014, during and after the Oscar Pistorius murder trial, many public commentators became experts on the concept of dolus eventualis. Within the past week, that expertise has expanded to nuanced knowledge about the legality of a secret ballot for voting in a motion of no confidence in President Jacob Zuma.
Stripped to core principles, the question is: On what basis could the Constitutional Court find in favour of the United Democratic Movement (UDM) application that the ballot be conducted in secret?
The matter received the attention of the Western Cape High Court in 2015. The court ruled against a secret ballot, but in terms of reasoning that is hardly of much legal persuasion.
In the first place, the rules of the National Assembly, in particular rules 103 and 104, were amended after that judgment to make it clear that the speaker has the discretion to alter the rule for voting by the open electronic means, which is the default position, to a vote on paper.
Second, the court read its task with a careful deference to Parliament and thus failed to look at the relevant purpose of the Constitution in determining whether the absence of an express stipulation for a secret ballot meant the vote had to be conducted in the open.
This failure was in sharp contrast to the approach of the majority of the Constitutional Court in Mazibuko vs Sisulu and Motshekga (2013), in which the court ordered a change to the rules of the National Assembly to deal with the manner in which a motion of no confidence could be placed on the order paper. In Mazibuko, the court held that the rules of Parliament are subject to scrutiny by the courts, albeit in this case on clear constitutional grounds.
Third, the Western Cape High Court somehow read into section 57 of the Constitution, which deals with the internal arrangements of Parliament, that a secret ballot could not be conducted in that case.
Notwithstanding the legal weakness of the judgment, a dominant consideration in an assessment of the UDM case is the difficulty that a court could overreach its powers by telling Parliament how to conduct its voting.
There are those who argue that, because the third schedule to the Constitution provides for a secret ballot for the appointment of the president, speaker and deputy speaker then, as the Constitutional Court held in Masetlha vs The President, the power to appoint includes the power to dismiss, so it must follow that the same procedure should be employed. (Billy Masetlha, the former head of the National Intelligence Agency, sought leave to appeal in a matter concerning his dismissal.)
What is at issue here is a motion of no confidence as provided for in section 102 of the Constitution. The effect of a successful motion is that the president and Cabinet must resign, but it does not follow that this is a power of dismissal, or that the same procedures must apply in both cases.
It is clear from rules 103 and 104 that the speaker has the discretion, and there is no constitutional or other legal impediment that prevents her from exercising it.
But the present speaker, Baleka Mbete, refused the call for a secret ballot because she claimed she had no discretionary power. So her decision is palpably without legal foundation, for she is required to exercise her discretion properly.
That she failed to do so could result in the court setting her refusal aside.
This, in turn, raises two possible outcomes: either the court remits the matter to the speaker or it substitutes its own decision for hers.
It can be argued that remittal is the prudent course. After all, as the Western Cape High Court said in 2015: “The legal system of South Africa has developed a strong set of traditions concerning the speaker of Parliament which were retained from the Westminster system of government.
According to these traditions, the speaker of Parliament must maintain the neutrality of the office, must act with fairness, without favouritism and with impartiality.”
Mbete is one of the six most senior people in the ANC. If the ANC does not support the secret ballot, what chance is there of Mbete, as a loyal and senior cadre, supporting it?
On its own, that may not be enough to persuade the court to substitute its own decision. But, in this case, there may be further compelling circumstances. Zuma has appeared to take the line that only the ANC can remove him; by implication, Parliament, where the ultimate constitutional power resides, is irrelevant.
Moreover, there have been public expressions of fear, intimidation and threats of violence if ANC MPs vote against the will of the ANC’s national working committee. If so, how are MPs to exercise oversight of the executive? This oversight is a constitutional obligation; it is not a matter of MPs refusing to follow the policy for which their party was elected.
If, in the papers presented to the court, the workings of the Constitution are plausibly shown to be imperilled, there is then a plausible argument for the decision of the court to replace the impugned one of the speaker.
The court may take the view that substitution would constitute judicial overreach. A significant minority adopted that view in refusing to interfere with Parliament in the Mazibuko matter.
It is a hard case.