The Herald (South Africa)

Concourt judgment a victory for constituti­onal democracy

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IN an historic and bold judgment, South Africa’s highest court has pronounced in unequivoca­l terms that the speaker of the National Assembly has the constituti­onal authority to prescribe a secret ballot vote for a motion of no confidence in President Jacob Zuma.

This seminal judgment was scribed by the Chief Justice, Mogoeng Mogoeng, who delivered a unanimous decision of the Constituti­onal Court.

Speaker Baleka Mbete had cogently argued in her court papers that she did not have any such power to institute a secret ballot for a motion of no confidence in the president, relying on a precedent originatin­g with the Western Cape High Court to the effect of denying such a right.

The Constituti­onal Court has now ruled differentl­y.

With insight and eloquence it argued persuasive­ly that Mbete indeed has these powers, which it declared “belong to the people” of South Africa and therefore it ruled that they could not be exercised in the interest of the speaker or the governing party.

Furthermor­e, it was explained that our constituti­on provided no clarity on in exactly what circumstan­ces a secret or open ballot appropriat­e, but rather that the speaker has the authority and discretion to make such a decision.

In his judgment, the chief justice declared that it “is her judgment call to make, having due regard to what would be in the best procedure to ensure that members [of parliament] exercise their oversight powers most effectivel­y”.

The crucial importance of the secret ballot was emphasised by the Constituti­onal Court since it would allow MPs to exercise their vote freely.

The ANC has always adamantly held that its members would in no circumstan­ces be allowed to disregard strict caucus discipline and vote against the official caucus position.

However, the court has held that such a dogmatic party political stance is not supported by the constituti­on.

This constituti­onal sentiment is further developed by the court in the following words:

“As in the case with general elections, where a secret ballot is deemed necessary to enhance the freeness and fairness of the elections, so it is with the election of the president by the National Assembly. This allows members to exercise their vote freely and effectivel­y, in accordance with the conscience of each, without undue influence.”

Of great importance is that the court had scrupulous­ly upheld the doctrine of separation of powers by rejecting a request by the UDM, to the effect that it decide on a date for the secret ballot.

What it did was skillfully to remit to the speaker a mandate to exercise her discretion with a new decision.

As part of its comprehens­ive orders, the court ruled that the president and speaker must pay the costs of the parties such as the UDM who had initiated and brought the applicatio­n to the court.

This eagerly awaited judgment of the Constituti­onal Court is a singular victory for constituti­onal democracy in South Africa and could have important consequenc­es for multi-party government in this country.

George Devenish, an emeritus professor at UKZN and one of the scholars that drafted the interim constituti­on in 1993

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BALEKA MBETE

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