Parliament, Wednesday 3 February 2021 – National Assembly Speaker Ms Thandi Modise has asked the High Court Western Cape Division, Cape Town, to dismiss the African Transformation Movement (ATM) application to review and set aside her decision not to grant the ATM’s request for a secret ballot on its motion of no confidence in the President.

In her answering affidavit filed in the High Court, the Speaker asks for the application to be dismissed with punitive costs. Please click to read the Speaker’s affidavit in full.

Firstly, the Speaker submits that the High Court does not have jurisdiction to hear the matter as only the Constitutional Court can make a finding that Parliament has failed to fulfil its constitutional obligations. Secondly, the Speaker contends that the ATM’s case lacks merit in that the ATM has failed to provide sufficient reasons why the secret ballot is the appropriate method of voting in the prevailing circumstances. Further the Speaker maintains that in the absence of compelling reasons for secret ballot the default position of openness and transparency in the conduct of the business of Parliament should be prevail.

The case is not about whether a motion of no confidence can be held by secret ballot. That has already been decided by the Constitutional Court. It is also common cause that the discretion on the which method of vote (secret or open ballot) should be employed rests with the Speaker.

Instead, this case turns on whether the Speaker lawfully exercised her discretion to hold an open ballot on the motion of no confidence in the President. The ATM fails to establish that the Speaker did not exercise her discretion lawfully.

It is worthwhile recalling that the ATM submitted a defective motion of no confidence which was only made compliant after the Speaker’s assistance. After considering the resubmitted motion of no confidence, the Speaker made her decision that voting on the motion would be by open ballot. She based this on, among other things, that NA Members swear an oath to the Constitution, that the political environment was not toxified and that the Constitution requires the NA to conduct its business in an open manner. This was particularly so as ATM had failed to provide any evidence to justify its request for a secret ballot.

Aggrieved by this decision, the ATM originally brought an urgent interdict application for a rule nisi which was set down for hearing on 3 December 2020. It ultimately abandoned this and agreed to a settlement with the Speaker allowing for the matter to be adjudicated over a longer time. The ATM postponed its motion of no confidence in the President, scheduled for 3 December 2020, and this is still pending.

The Speaker has maintained that if the ATM provided specific, fuller, more cogent and compelling “reasons” to her she would reconsider the motion, including applying her mind afresh to the question of secrecy. Instead, the ATM has now tried to mount a new case. Merely because the ATM disagrees with the Speaker’s decision does not make the decision unlawful. This is especially so where the potential consequence would be for this Court to direct the Speaker on how to conduct the affairs of the NA. This issue is not new and falls within the Constitutional Court’s exclusive jurisdiction.

Judgment has been reserved


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