Concourt ruling on secret ballot of crucial importance

President Jacob Zuma and his cabinet aside, the fate of South Africa is riding on the outcome

IN ORDER to understand the controversy relating to the proposed no-confidence motion in President Jacob Zuma it is necessary to comprehend the difference between presidential and parliamentary systems of government.

In the UK, famous for the Westminster paradigm, the system of parliamentary government developed over more than 1 000 years. In this model of government there is a head of state and a head of the government.

The former is the monarch, Queen Elizabeth II, who being titular reigns but does not rule, the latter is Prime Minister Theresa May, in whom actual power to govern vests and who together with her cabinet sits in the House of Commons, to which she is accountable and therefore must maintain a majority.

This gives rise to responsible government, which is a defining feature of the Westminster system of government. If the prime minister is defeated in a vote of confidence in the House of Commons, he or she must, by virtue of convention, seek a dissolution from the monarch and a general election must take place.

In contrast to the kind of parliamentary executive government found in the UK, in the US the doctrine of separation of powers prevails and it results in a pure presidential system of government.

In such a system the president is elected for a fixed term and is not accountable to the legislature, that is the Congress, consisting of the House of Representatives and the Senate. Neither the president nor his cabinet sit in either of the two houses and are therefore not accountable to them, as a British prime minister is to the House of Commons.

The American president cannot be removed by a vote of no-confidence in Congress, but only by a process of formal impeachment as set out in the US constitution. In South Africa, although we have an elected president, we have retained an essentially parliamentary system of executive government.

The reason for this is that when our president is elected by the National Assembly (NA), he resigns his seat in Parliament to become an executive head of state and head of the executive, but, with the exception of not more than two, the ministers of state he appoints are obliged to sit in the National Assembly and are accountable to it.

Unlike the position with the American president, a motion of no-confidence can be brought against him in terms of section 102(2) of the constitution, carried by a majority of members, and which if successful obliges him and his cabinet to resign. A South African president can also, in a different formal procedure, be impeached or removed from office in terms of section 89, involving a two thirds majority in the NA.

The actual constitutional position in South Africa is a hybrid, parliamentary-presidential one, not dissimilar to that which prevails in France under the 5th Republic Constitution, where the president does not sit in and is therefore not accountable to parliament, but his ministers are obliged to be members and account to it.

South Africa has adopted an electoral system based on proportional representation involving party lists, which although it has some advantages by virtue of its proportional character, unfortunately gives the leadership of political parties monopolistic control over public representatives while simultaneously freeing them from the legitimate and necessary constituency pressures to which representatives in the Westminster are subject to and which was used in elections before 1994.

It now becomes clear why the opposition parties have made application to the Constitutional Court for a secret ballot to be used in the NA when the motion of no-confidence in the President is proposed.

Voting by ANC members for the vote of no-confidence would allow the ANC to immediately deprive them of their seats in the NA.

It is for this reason that most informed political commentators consider the extant electoral system defective. Although the Van Zyl Slabbert Commission, appointed to investigate a new system, recommended a hybrid system similar to the German one, involving elements of both proportional and as well as constituency representation, no action was taken in this regard and the extant list system continues to operate, despite its manifest flaws.

However, if there is an open vote, ANC members in general are very unlikely to defy their caucus and vote according to their conscience. It is therefore manifestly clear that the ruling of the Constitutional Court on whether the Speaker can be compelled to hold a secret ballot is of crucial importance. Indeed, not only the fate of President Jacob Zuma, but that of the country depends on this.