The Western Cape High Court on Tuesday reserved its judgment in the matter involving African Transformation Movement (ATM) and Speaker of parliament Nosiviwe Mapisa Nqakula.
The ATM sought to review and set aside the speaker’s decision on the voting procedure undertaken for the Section 89 inquiry and the National Assembly’s decision not to proceed with the inquiry.
In December, the ATM filed an application to set aside the parliamentary vote which spared President Cyril Ramaphosa an impeachment inquiry.
Ramaphosa was facing an impeachment inquiry after the Section 89 independent panel probing the theft of foreign currency at his Phala Phala farm in Limpopo found that he may have a case to answer to.
Mapisa-Nqakula afforded MPs a chance to debate the matter and decide by vote whether Ramaphosa should be subjected to an impeachment inquiry to account for the crime or not.
At the time, the ATM and other parties including the EFF asked for voting to be cast by the method of a secret ballot, stating that it would not be fair to have an open vote after some MPs had allegedly been threatened and forced to vote against the adoption of the report.
However, Mapisa-Nqakula rejected the request twice and proceeded with an open vote. Out of 400 MPs, 214 voted against the report and 148 said the report must be adopted.
According to ATM president Vuyo Zungula, Mapisa-Nqakula did not employ an appropriate legal test when she decided to decline the request for a secret ballot. Zungula wanted the court to declare the National Assembly vote on the report irrational and invalid.
According to parliament spokesperson Moloto Mothapo, the speaker’s decision was enabled by the rules under section 57 of the constitution to exercise her discretion to determine how voting would be conducted.
“The speaker, in arriving at her decision to decline the ATM’s request, was empowered by the rules of the National Assembly under section 57 of the constitution to exercise discretion to determine how voting by the National Assembly would be conducted on the question of whether to proceed with the section 89[1] inquiry – that is, by open vote or secret ballot,” said Mothapo.
“The lawful exercise of her discretion affirms the functional independence of the National Assembly to invoke its powers under section 57 of the constitution and decide on the appropriate voting procedure for this question.
“In considering how the question would be voted on, the speaker argued that she did not presuppose that there was a default position for either an open or secret ballot. She said she simply took an independent and impartial decision on how the particular motion was to be conducted on a clean slate, in light of all relevant considerations in the prevailing environment.
“She argued that she did not place any onus on the ATM to prove that the prevailing circumstances justified that a secret ballot procedure was warranted. Instead, she duly considered the reasons advanced by the ATM in their requests for a secret ballot to be adopted in her holistic assessment of which voting mechanism would be better in the circumstances.”
In her affidavit, the speaker rejected the ATM’s argument that she misused her power to determine the voting procedure in what she has referred to as “regrettable and unfounded claims”.
“In the absence of any actual evidence of this kind of motive on her part, an inference of bad faith would only be justifiable if there were no other reasonable explanation for her decision, which the ATM seeks to impugn.
“The ATM seeks a review and setting aside of the NA’s [National Assembly] decision not to proceed with the section 89[1] inquiry; to substitute the speaker’s decision with an order that the voting procedure is conducted by way of secret ballot,” Mothapo said.
According to Mothapo, the speaker believes the ATM’s case lacks legal basis.
“The speaker believes that no legal basis exists for the granting of such relief which was described in a similar context by the constitutional court in its UDM [United Democratic Movement] judgment as ‘radical and separation of powers insensitive’.”
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