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[2017] ZACC 21
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United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 89/17
In the matter between:
UNITED DEMOCRATIC
MOVEMENT
Applicant
and
SPEAKER OF THE NATIONAL
ASSEMBLY
First Respondent
PRESIDENT JACOB
ZUMA
Second Respondent
AFRICAN NATIONAL
CONGRESS
Third Respondent
DEMOCRATIC
ALLIANCE
Fourth Respondent
ECONOMIC FREEDOM
FIGHTERS
Fifth Respondent
INKATHA FREEDOM
PARTY
Sixth Respondent
NATIONAL FREEDOM
PARTY
Seventh Respondent
CONGRESS OF THE
PEOPLE
Eighth Respondent
FREEDOM
FRONT
Ninth Respondent
AFRICAN CHRISTIAN DEMOCRATIC
PARTY
Tenth Respondent
AFRICAN INDEPENDENT
PARTY
Eleventh Respondent
AGANG SOUTH
AFRICA
Twelfth Respondent
PAN AFRICANIST CONGRESS OF
AZANIA
Thirteenth Respondent
AFRICAN PEOPLE’S
CONVENTION
Fourteenth Respondent
and
COUNCIL FOR THE ADVANCEMENT OF THE
SOUTH AFRICAN
CONSTITUTION
First Amicus Curiae
UNEMPLOYED PEOPLES’
MOVEMENT
Second Amicus Curiae
INSTITUTE FOR SECURITY
STUDIES
Third Amicus Curiae
SHOSHOLOZA PROGRESSIVE
PARTY
Fourth Amicus Curiae
Neutral citation:
United Democratic Movement v Speaker of the National Assembly and
Others
[2017] ZACC 21
Coram:
Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius
AJ and
Zondo J
Judgments:
Mogoeng CJ (unanimous)
Heard on:
15 May 2017
Decided on:
22 June 2017
Summary:
section 102 of the Constitution — motion of no confidence —
voting — secret ballot — President — Speaker
section 42 of the Constitution — section 55 of the Constitution
— accountability — section 57 of the Constitution
—
National Assembly — separation of powers
ORDER
On application for exclusive
jurisdiction or direct access the Court orders:
1.
The United Democratic Movement is granted direct access.
2.
It is declared that the Speaker of the National Assembly has the
constitutional
power to prescribe that voting in a motion of
no confidence in the President of the Republic of South Africa
be conducted
by secret ballot.
3.
The Speaker’s decision of 6 April 2017 that she does not have
the power
to prescribe that voting in the motion of no confidence in
the President be conducted by secret ballot is set aside.
4.
The United Democratic Movement’s request for a motion of
no confidence
in the President to be decided by secret ballot is
remitted to the Speaker for her to make a fresh decision.
5.
The Speaker and the President must pay the costs of the United
Democratic Movement,
the Economic Freedom Fighters, the Inkatha
Freedom Party and the Congress of the People, including costs of two
counsel where applicable.
JUDGMENT
MOGOENG CJ
(Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius
AJ and Zondo J
concurring):
Introduction
[1]
South Africa is a constitutional democracy – a
government of the people, by the people and for the people through
the instrumentality
of the Constitution. It is a system of
governance that “we the people” consciously and
purposefully opted for
to create a truly free, just and united
nation.
[1]
Central to this vision is the improvement of the quality of life of
all citizens and the optimisation of the potential of
each through
good governance.
[2]
Since constitutions and good governance do not self-actualise,
governance structures had to be created to breathe life into our
collective aspirations. Hence the existence of the legislative,
executive and judicial arms of the State. They each
have
specific roles to play and are enjoined to inter-relate as
foreshadowed by the following principle that guided our
constitution making
process:
“There shall
be a separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances
to ensure
accountability, responsiveness and openness.”
[2]
[3]
Knowing that it is not practical for all fifty five million
of us to assume governance responsibilities and function effectively
in these three arms of the State and its organs, “we the
people” designated messengers or servants to run our
constitutional
errands for the common good of us all. These
errands can only be run successfully by people who are unwaveringly
loyal to
the core constitutional values of accountability,
responsiveness and openness. And this would explain why all
have to swear
obedience to the Constitution before the assumption of
office.
[3]
Essential
context
[4]
Unelected servants of the people serve in the Judiciary that
comprises Judges and Magistrates. Judges are selected by a
constitutional
body which comprises Members of Parliament from the
ruling and opposition parties, a few Judges, a Cabinet Member, a few
legal
practitioners, a university law teacher and the President’s
appointees.
[4]
Of the candidates who prove to be fit and proper for a judicial
vacancy at the level applied for, one is then appointed by
the
President.
[5]
And like all other accountable servants of the people, their
under-performance or sanctionable conduct could result in their
removal from office through an impeachment process if the Judiciary,
Parliament and the President so decide.
[6]
[5]
The people’s representatives in Parliament are chosen
through an electoral process. Each citizen qualified to vote
may
participate in that process that is designed to deliver free and
fair elections. Those who stand for public office and are
elected
[7]
must attend the first sitting of the National Assembly.
[8]
It is at that first sitting that at least three things over which the
Judiciary presides must happen. First, Members
of the Assembly
must be affirmed or sworn in.
[9]
Second, the Speaker of the Assembly must be elected by Members.
[10]
Third, Members of the Assembly must elect the President of the
Republic.
[11]
Meaning, two arms of the State, the Judiciary and Parliament, each
has a different but critical role to play in the process
of electing
the Head of State and Head of the Executive after general elections.
Thereafter the President must be sworn in.
[12]
And that oath comes with serious obligations.
[13]
[6]
The President is an indispensable actor in the proper
governance of our Republic and bears important constitutional
responsibilities.
[14]
To enable him or her to discharge these obligations, he or she has a
fairly free hand in assembling the service delivery
team –
another set of servants comprising the Deputy President and a number
of Ministers required to exercise the executive
authority of the
Republic.
[15]
As many Deputy Ministers as are deemed necessary may also be
appointed.
[16]
Like Cabinet Ministers, they may be dismissed.
[17]
[7]
Public office, in any of the three arms, comes with a lot of
power. That power comes with responsibilities whose magnitude
ordinarily determines the allocation of resources for the performance
of public functions. The powers and resources assigned
to each
of these arms do not belong to the public office-bearers who occupy
positions of high authority therein. They are
therefore not to
be used for the advancement of personal or sectarian interests.
Amandla awethu, mannda ndiashu, maatla ke a rona or matimba ya
hina
(power belongs to us) and
mayibuye iAfrika
(restore
Africa and its wealth) are much more than mere excitement generating
slogans. They convey a very profound reality
that State power,
the land and its wealth all belong to “we the people”,
united in our diversity. These servants
are supposed to
exercise the power and control these enormous resources at the beck
and call of the people. Since State power
and resources are for
our common good, checks and balances to ensure accountability enjoy
pre eminence in our governance system.
[8]
This is all designed to ensure that the trappings or prestige
of high office do not defocus or derail the repositories of the
people’s
power from their core mandate or errand. For
this reason, public office-bearers, in all arms of the State, must
regularly
explain how they have lived up to the promises that inhere
in the offices they occupy. And the objective is to arrest or
address underperformance and abuse of public power and resources.
Since this matter is essentially about executive accountability,
that
is where the focus will be.
[9]
Accountability, responsiveness and openness
[18]
enjoin the President, Deputy President, Ministers and Deputy
Ministers to report fully and regularly to Parliament on the
execution of their obligations.
[19]
After all, Parliament “is elected to represent the people and
to ensure government by the people under the Constitution”.
[20]
[10]
It thus falls on Parliament to oversee the performance of the
President and the rest of Cabinet and hold them accountable for the
use of State power and the resources entrusted to them. And
sight must never be lost that “all constitutional obligations
must be performed diligently and without delay”.
[21]
When all the regular checks and balances seem to be ineffective or a
serious accountability breach is thought to have occurred,
then the
citizens’ best interests could at times demand a resort to the
ultimate accountability-ensuring mechanisms.
Those measures
range from being voted out of office by the electorate
[22]
to removal by Parliament through a motion of no confidence
[23]
or impeachment.
[24]
These are crucial accountability-enhancing instruments that forever
remind the President and Cabinet of the worst repercussions
that
could be visited upon them, for a perceived or actual mismanagement
of the people’s best interests.
[11]
Whether that time has come and how exactly to employ any of
these instruments is the judgement call of the same Parliament that
elected the President and to which he or she accounts. Some
Parliamentarians believe that that time has come and have tabled
a
motion of no confidence in the President. They have themselves
invited this Court to get involved and clarify the nature
and extent
of Parliament’s power. Rightly so, because “[e]veryone
has the right to have a dispute that can be
resolved by the
application of law decided in a fair public hearing before a
court”.
[25]
[12]
Implicit in this application is a deep-seated concern about
just how effective Parliament’s constitutionally-prescribed
accountability-enforcing
mechanisms are. Do they ensure that
there is enforcement of consequences for failure to honour core
constitutional obligations
or is it easy to escape consequences by
reason of the inefficacy of mechanisms? And does the
Constitution read with the Rules
of the National Assembly give the
Speaker the power to prescribe voting by secret ballot in a motion of
no confidence in the President?
Background
[13]
What reportedly triggered the tabling of a motion of no
confidence in the President, is that on 31 March 2017, invoking his
constitutional
powers,
[26]
the President dismissed the Finance Minister, Mr Pravin Gordhan, and
his Deputy, Mr Mcebisi Jonas.
[27]
Very soon after their dismissal, our economy was downgraded to
a sub-investment grade otherwise known as “junk status”.
[14]
And it was largely because of the economic downgrade that
three of the political parties represented in the National Assembly,
the
United Democratic Movement (UDM), the Democratic Alliance (DA)
and the Economic Freedom Fighters (EFF) asked the Speaker of the
National Assembly to schedule a motion of no confidence in the
President. She agreed and scheduled it for 18 April 2017.
[15]
On 6 April 2017 the UDM wrote a letter to the Speaker.
She was asked to prescribe a secret ballot as the voting procedure
for the scheduled motion of no confidence in the President.
In substantiation, the UDM cited what it termed the obvious
importance of the matter, the public interest imperative that a truly
democratic outcome be guaranteed and the high likelihood
that the
vote would otherwise be tainted by the perceived fear of adverse and
career limiting consequences, instead of being
the free will of
Members. The oath or affirmation taken by Members and
considerations of accountability were added in support
of a secret
ballot as the preferred voting procedure. While admitting that
the Rules of the National Assembly do not make
express provision for
a secret ballot in that motion, the UDM contended that some direction
could be found in sections 57 and 86(2)
of the Constitution, read
with item 6(a), Part A of Schedule 3 to the Constitution and rule 2
of the Rules of the National
Assembly.
[16]
The UDM argued that because none of these legal instruments
prohibits a secret ballot, cumulatively they offer sufficient
guidance
for voting in secret. It contended that
Tlouamma
,
[28]
a decision of the High Court in the Western Cape, was
distinguishable. The Court in this case had held that there was
no
implied or express constitutional requirement for voting by secret
ballot on a motion of no confidence in the President. It
had
then dismissed an application for an order to compel the National
Assembly to vote on a motion of no confidence by secret ballot.
The UDM reiterated that the public interest dictated that the vote of
no confidence be conducted by a secret ballot.
[17]
In response, the Speaker said voting procedures in the
Assembly are determined by the Constitution and the Rules of the
National
Assembly and that none of them provides for a vote on a
motion of no confidence to be conducted by a secret ballot. She
also placed reliance on
Tlouamma
.
[18]
In conclusion, the Speaker said that she had no authority in
law or in terms of the Rules to determine that voting on that motion
be conducted by secret ballot. Also, she was entrusted with the
responsibility to ensure that the House is at all times able
to
perform its constitutional functions in strict compliance with the
Constitution, the Rules and Orders of the National Assembly.
For these reasons, she concluded that the UDM’s request could
not be acceded to.
[19]
Aggrieved by that response, the UDM, supported by some of the
political parties represented in the National Assembly
[29]
and friends of the court,
[30]
approached this Court to determine whether the Constitution and the
Rules of the National Assembly require or permit or prohibit
the
Speaker to direct that a vote on a motion of no confidence in the
President be conducted by secret ballot. It seeks an
order in
the following terms:
“1
It is directed that the matter is to be dealt with as an urgent
application and
the applicant’s non-compliance with the
ordinary rules for service and time periods is condoned.
2
It is declared that this Court has exclusive jurisdiction to
determine the
application, alternatively the applicant is granted
direct access to this Court.
3
It is declared that:
3.1
The Constitution requires that motions of no confidence in terms of
section 102 of the Constitution
must be decided by secret ballot;
3.2
Alternatively to paragraph 3.1, it is declared that the Constitution
permits motions of
no confidence in terms of section 102 of the
Constitution to be decided by secret ballot.
4
It is declared that:
4.1
The National Assembly Rules permit motions of no confidence in terms
of section 102 of the
Constitution to be decided by secret ballot;
4.2
Alternatively to paragraph 4.1, Rules 102 to 104 of the
National Assembly Rules are
unconstitutional and invalid to the
extent that they preclude secret ballots being used for motions of no
confidence.
5
The decision of the Speaker dated 6 April 2017 to refuse to allow the
no confidence
motions to be decided by secret ballot is reviewed
and set aside and declared unconstitutional and invalid.
6
The Speaker is directed to make all the necessary arrangements to
ensure
that the motion of no confidence currently scheduled for 18
April 2017 is decided by secret ballot, including designating a new
date for the motion to be debated and voted on no later than 25 April
2017.
7
The costs of this application are to be paid by the Speaker, jointly
and
severally with any other party opposing the relief sought.”
[20]
It is now common cause among the parties that this application
is no longer immediately urgent.
Jurisdiction
[21]
The jurisdiction of this Court is sought to be established on
two alternative grounds – direct access and exclusive
jurisdiction.
[22]
Section 167(6) of the Constitution provides for direct access
to this Court in the following terms:
“National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice
and with leave of the
Constitutional Court—
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other court.
”
[23]
The requirements for leave to bring an application or an
appeal directly to this Court are fundamentally similar. For
this
reason, when in the case of a direct appeal the interests of
justice requirement would be satisfied for purposes of granting leave
when certain factors exist, similar factors ought to redound to the
success of an application for direct access.
[31]
But direct access or direct appeal is certainly not available for the
asking. Proof of exceptional circumstances, in
the form of
sufficient urgency or public importance and proof of prejudice to the
public interest or the ends of justice and good
governance, must
demonstrably be established.
[32]
[24]
In
Mazibuko
[33]
this Court was seized with a dispute relating to a motion of
no confidence in the President. Some of the issues to be
resolved were: (a) whether the Speaker of the National Assembly had
the power to schedule a motion of no confidence on his
own
authority; (b) whether the Rules were inconsistent with the
Constitution to the extent that they did not provide for motions
of
no confidence in the President, as envisaged in section 102(2); and
(c) whether Parliament had failed to fulfil a constitutional
obligation in terms of section 167(4)(e) of the Constitution.
[34]
[25]
The application was brought in the form of a direct appeal
from the High Court to this Court. In addressing the issues,
this
Court had regard to whether the interests of justice require
that leave be granted and to the great significance of a motion of
no confidence in our constitutional democracy. It also
took into account that when and how to vindicate the power to
initiate, debate and vote on a motion of no confidence under
section 102 is an issue that deserves the attention of this Court.
The primary purpose of this motion, which is to ensure that the
President and the national Executive are held accountable, was
also
taken into account to undergird the proposition that the matter would
in all likelihood end up in this Court.
[35]
[26]
All of the above led to the conclusion that a direct appeal
had to be granted. As for the application for an order
declaring
that this Court has exclusive jurisdiction, the majority
said:
“Given the
outcome of the direct access application, we expressly refrain from
deciding whether the requirements of section
102(2) create an
obligation on the assembly within the meaning of section 167(4)(e).
Resolving that dispute must wait for
another day.”
[36]
[27]
We would do well to leave the resolution of the question
whether this Court has exclusive jurisdiction in this matter for
another
day. Here too, we embrace and reiterate the
observations relating to the importance of a motion of no confidence
in our constitutional
democracy, its primary objective as an
effective consequence enforcement tool and the likelihood of the
dispute ending up
in this Court even if we were to direct that it be
heard by the High Court first.
[28]
A motion of no confidence in the Head of State and Head of the
Executive is a very important matter. Good governance and
public
interest could at times haemorrhage quite profusely if that
motion were to be left lingering on for a considerable period of
time.
It deserves to be prioritised for attention within a
reasonable time.
[37]
The relative urgency of the guidance needed by Parliament from this
Court is also an important factor to take into account.
Consistent with the approach in
Mazibuko
in relation to an
application for direct appeal, we too find it convenient to resolve
the jurisdictional issue on the basis of
direct access. Based
on these factors, it is in the interests of justice to grant direct
access.
The nature and purpose of a motion of
no confidence
[29]
The proper approach is one guided by this Court’s
jurisprudence on constitutional interpretation. In
Hyundai
we said:
“The
Constitution is located in a history which involves a transition from
a society based on division, injustice and exclusion
from the
democratic process to one which respects the dignity of all citizens,
and includes all in the process of governance. As
such, the
process of interpreting the Constitution must recognise the context
in which we find ourselves and the Constitution’s
goal of a
society based on democratic values, social justice and fundamental
human rights. This spirit of transition and
transformation
characterises the constitutional enterprise as a whole.”
[38]
[30]
In
Matatiele
, we also made the following observations
in relation to the correct approach to adopt in construing our
Constitution:
“Our
Constitution embodies the basic and fundamental objectives of our
constitutional democracy. Like the German Constitution,
it ‘has
an inner unity, and the meaning of any one part is linked to that of
other provisions. Taken as a unit [our]
Constitution reflects
certain overarching principles and fundamental decisions to which
individual provisions are subordinate.’
Individual
provisions of the Constitution cannot therefore be considered and
construed in isolation. They must be construed
in a manner that
is compatible with those basic and fundamental principles of our
democracy. Constitutional provisions must
be construed
purposively and in the light of the Constitution as a whole.”
[39]
[31]
And this is the approach to be adopted in pursuit of the
correct answer to the issues raised in this matter. The
Preamble
to our Constitution is a characteristically terse but
profound recordal of where we come from, what aspirations we espouse
and
how we seek to realise them. Our public representatives are
thus required never to forget the role of this vision as both
the
vehicle and directional points desperately needed for the successful
navigation of the way towards the fulfilment of their
constitutional
obligations. Context, purpose, our values as well as the vision
or spirit of transitioning from division,
exclusion and neglect to a
transformed, united and inclusive nation, led by accountable and
responsive public office-bearers, must
always guide us to the correct
meaning of the provisions under consideration. Our entire
constitutional enterprise would
be best served by an approach to the
provisions of our Constitution that recognises that they are
inseparably interconnected.
These provisions must thus be
construed purposively and consistently with the entire Constitution.
[32]
Although a motion of no confidence may be invoked in instances
that are unrelated to the purpose of holding the President to
account,
[40]
it is a potent tool towards the achievement of that purpose. In
that context, it is inextricably connected to the foundational
values
of accountability and responsiveness to the needs of the people.
It is a mechanism at the disposal of the National
Assembly to resort
to, whenever necessary, for the enhancement of the effectiveness and
efficiency of its constitutional obligation
to hold the Executive
accountable and oversee the performance of its constitutional duties.
[33]
And accountability is necessitated by the reality that
constitutional office bearers occupy their positions of
authority on
behalf of and for the common good of all the people.
It is the people who put them there, directly or indirectly, and
they,
therefore, have to account for the way they serve them.
[34]
A motion of no confidence therefore exists to strengthen
regular and less “fatal” accountability and oversight
mechanisms.
To understand how a motion of no confidence in
the President enhances and fits into the broader accountability
scheme, it
is necessary to highlight some of the constitutional
accountability provisions that apply to the Executive.
[35]
Section 92 of the Constitution demands accountability from the
Executive in these terms:
“
Accountability
and responsibilities
(1)
The Deputy President and Ministers are responsible for the powers and
functions of
the executive assigned to them by the President.
(2)
Members of the Cabinet are accountable collectively and individually
to Parliament
for the exercise of their powers and the performance of
their functions.
(3)
Members of the Cabinet must––
(a)
act in accordance with the Constitution; and
(b)
provide Parliament with full and regular reports concerning matters
under their control.”
And section 93(2) of the Constitution
provides:
“Deputy
Ministers appointed in terms of subsection (1)(b) are accountable to
Parliament for the exercise of their powers and
the performance of
their functions.”
[36]
The President, Deputy President, Ministers and their Deputies
are thus enjoined by the supreme law of the land to be “accountable
collectively and individually to Parliament for the exercise of their
powers and the performance of their functions”.
Not only
are they responsible for the proper exercise of the powers and
carrying out of the functions assigned to the Executive
but they are
also required to act in line with the Constitution.
Additionally, they are obliged to “provide Parliament
with full
and regular reports concerning matters under their control”.
[37]
In anticipation of a President and this constitutionally
envisaged team’s possible remissness in the execution of their
constitutional
mandate, provision was made to minimise or address
that possibility. Those who represent the people in Parliament
have thus
been given the constitutional responsibility of ensuring
that Members of the Executive honour their obligations to the
people.
Parliament that elects the President and of which the
Deputy President, Ministers and their Deputies are Members,
[41]
not only passes legislation but also bears the added and crucial
responsibility of “scrutinising and overseeing executive
action”.
[42]
[38]
Members of Parliament have to ensure that the will or
interests of the people find expression through what the State and
its organs
do. This is so because Parliament “is elected
to represent the people and to ensure government by the people under
the Constitution”.
[43]
This it seeks to achieve by, among other things, passing legislation
to facilitate quality service delivery to the people,
appropriating
budgets for discharging constitutional obligations and holding the
Executive and organs of State accountable for
the execution of their
constitutional responsibilities.
[39]
Parliament’s scrutiny and oversight role blends well
with the obligations imposed on the Executive by section 92. It
is provided for in section 55 of the Constitution:
“
Powers of
National Assembly
. . .
(2)
The National Assembly must provide for mechanisms––
(a)
to ensure that all executive organs of state in the national sphere
of government
are accountable to it; and
(b)
to maintain oversight of––
(i)
the exercise of national executive authority, including the
implementation of
legislation; and
(ii)
any organ of state.”
[40]
The National Assembly indeed has the obligation to hold
Members of the Executive accountable, put effective mechanisms in
place
to achieve that objective and maintain oversight of their
exercise of executive authority. There are parliamentary
oversight
and accountability mechanisms that are sufficiently
notorious to be taken judicial notice of. Some of them are
calling on
Ministers to: regularly account to Portfolio Committees
and
ad hoc
Committees; and avail themselves to respond to
parliamentary questions as well as other question and answer sessions
during a National
Assembly sitting. It is also through the
State of the Nation Address, Budget Speeches and question and answer
sessions that
the President and the rest of the Executive are held to
account.
[41]
These accountability and oversight mechanisms, are the regular
or normal ones. There may come a time when these measures are
not or appear not to be effective. That would be when the
President and his or her team have, in the eyes of the elected
representatives of the people to whom they are constitutionally
obliged to account, disturbingly failed to fulfil their obligations.
In other words, that stage would be reached where their apparent
under-performance or disregard for their constitutional obligations
is viewed, by elected public representatives, as so concerning that
serious or terminal consequences are thought to be most appropriate.
And that takes the form of removal from office.
[42]
The Constitution provides for two processes in terms of which
the President may be removed from office. First, impeachment,
which applies where there is a serious violation of the Constitution
or the law, serious misconduct or an inability to perform
the
functions of the office.
[44]
Another related terminal consequence or supreme accountability tool,
in-between general elections, is a motion of no confidence
for
which the Constitution provides as follows:
“
102.
Motions
of no confidence
(1)
If the National Assembly, by a vote supported by a majority of its
members, passes
a motion of no confidence in the Cabinet excluding
the President, the President must reconstitute the Cabinet.
(2) If the National
Assembly, by a vote supported by a majority of its members, passes
a
motion of no confidence in the President, the President and the other
members of the Cabinet and any Deputy Ministers must resign.”
[43]
A motion of no confidence constitutes a threat of the ultimate
sanction the National Assembly can impose on the President and
Cabinet
should they fail or be perceived to have failed to carry out
their constitutional obligations. It is one of the most
effective
accountability or consequence-enforcement tools designed to
continuously remind the President and Cabinet of what could happen
should regular mechanisms prove or appear to be ineffective.
This measure would ordinarily be resorted to when the people’s
representatives have, in a manner of speaking, virtually given up on
the President or Cabinet. It constitutes one of the
severest
political consequences imaginable – a sword that hangs over the
head of the President to force him or her to always
do the right
thing. But, that threat will remain virtually inconsequential
in the absence of an effective operationalising
mechanism to give it
the fatal bite, whenever necessary.
[44]
It was with this appreciation of the invaluable role of a
motion of no confidence in mind and the necessity for its efficacy
that
the following observations were made in
Mazibuko
:
“A motion of
no confidence in the President is a vital tool to advance our
democratic hygiene. It affords the Assembly
a vital power and
duty to scrutinise and oversee executive action. . . . The ever
present possibility of a motion of no confidence
against the
President and the Cabinet is meant to keep the President accountable
to the Assembly which elects her or him.”
[45]
[45]
A motion of no confidence is, in some respects, potentially
more devastating than impeachment. It does not necessarily
require
any serious wrongdoing, though this is implied. It may
be passed by an ordinary, as opposed to a two-thirds majority of
Members
of the National Assembly. Unlike an impeachment that
targets only the President, a motion of no confidence does not spare
the Deputy President, Ministers and Deputy Ministers of adverse
consequences. And the Constitution does not say when or on
what
grounds it would be fitting to seek refuge in a motion of
no confidence.
[46]
As to when and why, a point could conceivably be reached where
serious fault lines in the area of accountability, good
governance
and objective suitability for the highest office have
since become apparent. Those concerns might not necessarily
rise to
the level of grounds required for impeachment. But, the
lingering expectation of the President delivering on the
constitutional
mandate entrusted to him or her might have become
increasingly dim.
[47]
In the final analysis, the mechanism of a motion of no
confidence is all about ensuring that our constitutional project is
well
managed; is not imperilled; the best interests of the nation
enjoy priority in whatever important step is taken; and our nation
is
governed only by those deserving of governance responsibilities.
To determine, through a motion of no confidence, the
continued
suitability for office of those who govern, is a crucial
consequence-management or good-governance issue. This
is so
because the needs of the people must never be allowed to be neglected
without appropriate and most effective consequences.
So, a
motion of no confidence is fundamentally about guaranteeing or
reinforcing the effectiveness of existing mechanisms, in-between
the
general elections, by allowing Members of Parliament as
representatives of the people to express and act firmly on their
dissatisfaction
with the Executive’s performance.
[48]
When the stage is reached or a firm view is formed, by some
Members of the National Assembly, that the possibility of removing
the
President or Cabinet from office through a motion of no
confidence be explored, would it be constitutionally permissible for
the
Speaker, on behalf of the National Assembly, to prescribe a
secret ballot as the voting procedure? On what bases may
this Court conclude that the Speaker does have the power to order
voting by secret ballot?
Does the Speaker have the power to
prescribe a secret ballot?
[49]
The Speaker
[46]
was asked by some Members of the Assembly to make a determination
that voting in the motion of no confidence in the President be
conducted by secret ballot. She holds the view that neither the
Constitution nor any rule gives her that power. She
cites
Tlouamma
as a further impediment to the option of a
secret ballot. We are thus called upon to determine
whether the Constitution
and Rules of the National Assembly require,
permit or prohibit that voting in a motion of no confidence in
the President be
by secret ballot.
[50]
Section 102(2) provides that the National Assembly is to take
a decision in a motion of no confidence through a vote. Neither
the sections nor the rules relied on by the parties, to support the
contention that a secret ballot is required, provide expressly
for
any voting procedure in a motion of no confidence.
[47]
A reflection on some constitutional provisions that provide for
voting in line with the interpretative guidelines laid down
by
Hyundai
and
Matatiele
is thus necessary
.
[48]
[51]
Section 19(3)(a) of the Constitution provides that “[e]very
adult citizen has the right . . . to vote in elections
for
any legislative body established in terms of the Constitution, and to
do so in secret”. Our Constitution has chosen
a secret
ballot as the voting procedure for the general elections.
[52]
The President may, in terms of section 50(1) of the
Constitution, dissolve the National Assembly if it has through a
majority vote
of its Members adopted a resolution for its
dissolution. No provision is made for the voting procedure.
[53]
Section 52 of the Constitution provides:
“
Speaker
and Deputy Speaker
(1)
At the first sitting after its election, or when necessary to fill a
vacancy, the
National Assembly must elect a Speaker and a Deputy
Speaker from among its members.
. . .
(3)
The procedure set out in Part A of Schedule 3 applies to the election
of the Speaker
and the Deputy Speaker.
(4)
The National Assembly may remove the Speaker or Deputy Speaker from
office by resolution.
A majority of the members of the Assembly
must be present when the resolution is adopted.
(5)
In terms of its rules and orders, the National Assembly may elect
from among its members
other presiding officers to assist the Speaker
and the Deputy Speaker.”
[54]
This section is about the election of the Speaker and Deputy
Speaker at the first sitting of the Assembly and whenever the need
arises to do so. Focusing on voting, which is central to this
application, it is required in three different instances.
First, when the Speaker or Deputy is being elected. Second,
implicitly when a resolution for the removal of the Speaker or
Deputy
Speaker is to be adopted. Third, when other presiding officers
are being elected.
[55]
No procedure is spelt out for the removal process.
Similarly, the election of other presiding officers in terms of
subsection
5 is simply required to take place in terms of the Rules
and Orders of the Assembly but the voting mechanism is not expressly
provided
for. Section 52(3) does however prescribe the voting
procedure set out in Part A of Schedule 3 for the election of the
Speaker
and Deputy. Similarly, section 86 of the Constitution
prescribes the voting procedure in Part A of Schedule 3. This
section provides for the election of the President as follows:
“(1)
At its first sitting after its election, and whenever necessary to
fill a vacancy, the
National Assembly must elect a woman or a man
from among its members to be the President.
(2)
. . . . The procedure set out in Part A of Schedule 3 applies to the
election of the
President.”
[56]
The relevant part of the Part A of Schedule 3 voting procedure
reads:
“
Part A Election Procedures for
Constitutional Office Bearers
Application
1.
The procedure set out in this Schedule applies whenever—
(a)
the National Assembly meets to elect the President, or the Speaker or
Deputy Speaker
of the Assembly;
(b)
the National Council of Provinces meets to elect its Chairperson or a
Deputy Chairperson;
or
(c)
a provincial legislature meets to elect the Premier of the province
or the Speaker
or Deputy Speaker of the legislature.
. . .
Election procedure
6.
If more than one candidate is nominated—
(a)
a vote must be taken at the meeting by secret ballot;
(b)
each member present, or if it is a meeting of the National Council of
Provinces, each
province represented, at the meeting may cast one
vote; and
(c)
the person presiding must declare elected the candidate who receives
a majority of
the votes.”
The election of the President and other
constitutional office-bearers requires an ordinary majority of
Members present and a secret
ballot.
[57]
Several important observations emerge from these sections that
provide for voting. The procedure to be followed for the
election
of the President and several constitutional office-bearers
has been specifically provided for. It is voting by
secret ballot
and whoever secures a majority of votes is to be
declared elected. As regards the removal from office either
through an impeachment
[49]
or a motion of no confidence,
[50]
the Constitution is silent on the procedure.
[58]
The Constitution could have provided for a vote by secret
ballot or an open ballot. It did neither. Why did
the
Constitution leave the procedure open? Section 57(1)
provides the answer:
“The National
Assembly may—
(a)
determine and control its internal arrangements, proceedings and
procedures; and
(b)
make rules and orders concerning its business, with due regard to
representative and
participatory democracy, accountability,
transparency and public involvement.”
[59]
To pass a motion of no confidence in the President requires a
vote supported by a majority of National Assembly Members.
Absent
an expression of choice by the Constitution, the National
Assembly is at large to exercise its section 57(1) powers to decide
on
the appropriate voting procedure in terms of which to decide the
motion. And the choice lies between an open or secret ballot.
The National Assembly therefore has the power to determine whether
voting on a motion of no confidence would be by open ballot
or secret
ballot. The purpose for leaving the voting procedure open could
only have been for the Assembly itself to determine,
in terms of its
section 57 powers, what would best advance our constitutional
vision or project.
[60]
Both possibilities of an open or secret ballot are
constitutionally permissible. Otherwise, if Members always had
to vote
openly and in obedience to enforceable party instructions,
provision would not have been made for a secret ballot when the
President,
Speaker, Chairperson of the National Council of Provinces
and their Deputies are elected.
[51]
And the Constitution would have made it clear that voting would
always be by open ballot.
[61]
If the will of political parties were to always prevail, the
Constitution would probably have required political parties to
determine
which way they want to vote on issues and through their
Chief Whips signify support or opposition by submitting the list
of
Members who would be present when voting takes place. But,
because it is individual Members who really have to vote, provisions
are couched in the language that recognises the possibility of
majorities supporting the removal of the President and the Speaker.
Conceptually, those majorities could only be possible if Members of
the ruling party are also at liberty to vote in a way that
does not
always have to be predetermined by their parties. And this of
course assumes that the ruling party would generally
be opposed to
the removal of their own.
[62]
Additionally, constitutions of comparable democracies
prescribe a vote by secret ballot only for the general elections, the
election
of the President, the equivalent of the Speaker and her
counterpart in the second House. As for the voting procedure to
be
followed for removal from office, no provision has been made.
[52]
[63]
What these legislative bodies have, however, done is to
provide for a secret ballot either in legislation or their rules
of
procedure.
[53]
They did so because, just as our Parliament has the power to
determine its procedures in terms of section 57, they have the
power
to decide whether the removal process ought to be by an open or
secret ballot. Attempts to find any comparable constitutional
democracy where a court of law has prescribed the removal voting
procedure for the legislature drew a blank. Understandably
so,
because considerations of separation of powers demand an ever abiding
consciousness of the constitutionally-sanctioned
division of labour
among the arms and a refrain from impermissible intrusions.
[64]
It bears emphasis that the absence of a prior determination of
the voting procedure by our Constitution for a motion of no
confidence
means that it neither prohibits nor prescribes an open
ballot or a secret ballot. The effect of this is to leave it
open
to the National Assembly, when the time comes to vote on that
motion, to decide on the appropriate voting procedure. This
can
only reinforce the conclusion that the Assembly has the power to make
that determination. It is for it to decide on the
voting
procedure necessary for the efficiency and effectiveness of the
institution in holding the Executive accountable.
In sum, how
best and in terms of which voting procedure to hold the President
accountable in the particular instance is the responsibility
constitutionally-allocated to the National Assembly.
[65]
The Assembly has made rules in terms of its section 57
powers. Those rules make provision for the determination of the
voting
procedure for a motion of no confidence tabled at a
particular time. Rule 102 says that “[u]nless the
Constitution
provides otherwise, voting takes place in accordance
with Rules 103 or 104”. Rule 103 provides:
“(1)
At a sitting of the House held in a Chamber where an electronic
voting system is in operation,
unless the presiding officer directs
otherwise, questions are decided by the utilisation of such system in
accordance with a procedure
predetermined by the Speaker and
directives as announced by the presiding officer.
(2)
Members may vote only from the seats allocated to them individually
in the Chamber.
(3)
Members vote by pressing the ‘Yes’, ‘No’ or
‘Abstain’
button on the electronic consoles at their
seats when directed by the presiding officer to cast their votes.
(4)
A member who is unable to cast his or her vote, must draw this to the
attention of
the Chair and may in person or through a whip of his or
her party inform the Secretary at the Table of his or her vote.
(5)
When all members have cast their votes, the presiding officer must
immediately announce
the result of the division.
(6)
Members’ names and votes must be printed in the Minutes of
Proceedings.”
[66]
And rule 104 reads:
“(1)
Where no electronic voting system is in operation, a manual voting
system may be used in
accordance with a procedure predetermined by
the Speaker and directives to be announced by the presiding officer.
(2)
When members’ votes have been counted, the presiding officer
must immediately
announce the result of the division.
(3)
If the manual voting procedure
permits
, members’ names
and votes must be printed in the Minutes of Proceedings.”
[67]
These rules provide for a voting system and procedure that
allows for details of a Member and how she voted to be known.
So
known that the Minutes of Proceedings would be able to capture the
names and the exact vote of each Member. But, read together,
sub-rules (1) and (3) of rule 104 empower the Speaker to predetermine
a manual voting system that may not permit a recordal or
disclosure
of the names and votes of Members. That is an indiscriminate
manual secret ballot procedure. Indiscriminate
because it is
not limited to the election of the President, Speaker or Deputy
Speaker. It is not incident specific and
must thus apply
just as well to any incident of voting for which the Speaker may
prescribe a secret ballot including the removal
of the President.
The National Assembly has, through its Rules, in effect empowered the
Speaker to decide how a particular
motion of no confidence in the
President is to be conducted.
[68]
In sum, rule 104(1) and (3) empowers the Speaker to have even
a motion of no confidence in the President voted on by secret
ballot. But, when a secret ballot would be appropriate, is an
eventuality that has not been expressly provided for and which
then
falls on the Speaker to determine. That is her judgement call
to make, having due regard to what would be the best procedure
to
ensure that Members exercise their oversight powers most
effectively. And that is something she may “predetermine”
as envisaged in rule 104(1).
[69]
Our decision that the power to prescribe the voting procedure
in a motion of no confidence reposes in the Speaker, accords
with the dictates of separation of powers. It affirms the
functional independence of Parliament to freely exercise its section
57 powers.
The exercise of the power to
determine the procedure
[70]
The proper exercise of the power to prescribe a voting
procedure in a motion of no confidence proceedings would partly
depend on
why the Constitution prescribes a secret ballot for the
general elections and a contested election of the President and the
Speaker.
[71]
Beginning with European electoral instruments, article 5 of
its Convention on the Standards of Democratic Elections, Electoral
Rights
and Freedoms in the Member States of the Commonwealth of
Independent States provides:
“The Parties
hereto proceed from the assumption that observance of the principle
of secret balloting means exclusion of any
control over voters’
expression of will, provision for equal conditions for free
choice.”
[54]
[72]
I
n
Botswana Democratic
Party
the Court of Appeal of the Republic of Botswana noted that
the secret ballot voting system in Parliament—
“is rather an
arrangement put in place by the National Assembly for the
effective
exercise of the Members’ right to vote
without outside
influence or coercion which could render the right an empty one
.”
[55]
And this
was also
explained by the Supreme Court of Zimbabwe in these terms:
“
The
legislature chose the secret ballot for its optimum benefits
. . . . The prescription of
a secret
ballot
as the method for the election
of the Speaker [by members of the legislature]
is
based on the acceptance of the principle that it promotes and
protects freedom of expression of choice
of a preferred candidate
without undue
influence, intimidation and fear of disapproval by others.
”
[56]
[73]
As is 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, intimidation or fear of disapproval by
others.
[74]
The frustration or disappointment of the losing presidential
hopeful and his or her supporters could conceivably have a wide range
of prejudicial consequences for Members who are known to have
contributed to the loss. To allow Members of the National
Assembly to vote with their conscience and choose who they truly
believe to be the best presidential material for our country, without
any fear of reprisals, a secret ballot has been identified as
the best voting mechanism.
[75]
Conversely, a Member of Parliament could be exposed to a range
of reasonably foreseeable prejudicial consequences when called upon
to pronounce through a vote on the President’s accountability
or continued suitability for the highest office. But
of course
that potential risk would also depend on the motivation for the
motion of no confidence. Is it on grounds
that impugn
competence, faithfulness to the Republic or commitment to upholding
constitutional obligations or on some fairly innocuous
or less
divisive or less sensitive grounds?
[76]
The appropriateness of a voting procedure for that motion is
particularly important since our electoral system is structured in
such a way that it is, broadly speaking, a party but not a Member of
Parliament that gets voted into Parliament. A political
party
virtually determines who goes to Parliament
[57]
and who is no longer allowed to represent it in Parliament.
[58]
Members’ fate or future in office depends largely on the
party. The Deputy President, Ministers and Deputy Ministers
who
are also Members of Parliament, are presidential appointees.
The ruling party has a great influence on, or dictates,
who gets
appointed or elected as senior office-bearers in Parliament.
Almost invariably the President – although not
a Member of
Parliament – is the leader of the ruling party.
[59]
It would be quite surprising if the senior office bearers in
Parliament were not appointed or elected with a significant
input by
the President and other senior party officials. There are
therefore institutional and other risks that Members,
particularly of
any ruling party, are likely to get exposed to when they openly
question or challenge the suitability of their
leader(s) for the
position of President. I say leaders advisedly because the
logical trend has been to give the highest positions
in governance
structures to most senior leaders.
[77]
In the
Certification
case, this Court addressed the
conflict that arises from some Members’ continued membership of
the National Assembly, after
their appointment to Cabinet:
“An objection
was taken to various provisions of the [New Text] that are said to
violate [Chapter] VI. This [Chapter]
reads:
‘There shall
be a separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances
to ensure
accountability, responsiveness and openness.’
The principal
objection is directed at the provisions of the [New Text] which
provide for members of executive government also to
be members of
legislatures at all three levels of government. It was further
submitted that this failure to effect full separation
of powers
enhances the power of executive government (particularly in the case
of the President and provincial Premier), thereby
undercutting the
representative basis of the democratic order.
. . .
It was also
contended that the requirements of accountability and responsiveness
in [Chapter] VI were breached. The argument
was that
legislators would have to obey the instructions of the party
leadership even if the party concerned had unequivocally
abandoned
its electoral manifesto and directed its [Members of Parliament] to
vote, speak and act against the policies expressed
in that manifesto;
or if the party imposed the whip in relation to a policy which
legislators sincerely and reasonably believed
to be wrong. The
end result, so it was further submitted, would amount to a subversion
of the accountability and responsiveness
of legislators to the
electorate. We do not agree. Under a list system of
proportional representation, it is parties
that the electorate votes
for, and parties which must be accountable to the electorate. A
party which abandons its manifesto
in a way not accepted by the
electorate would probably lose at the next election. In such a
system an anti-defection clause
is not inappropriate to ensure that
the will of the electorate is honoured. An individual member
remains free to follow the
dictates of personal conscience.
This is not inconsistent with democracy.”
[60]
[78]
The most effective extra-parliamentary mechanism for holding
the people’s elected representatives accountable, is a general
election. It is in this context that this Court said “it
is parties that the electorate vote for and parties which
must be
accountable to the electorate”. Also, that a party’s
unacceptable abandonment of its manifesto is likely
to result in
electoral defeat. A factor that is relevant to the Speaker’s
decision-making in relation to a democratically-permissible
voting
procedure is that “an individual member remains free to follow
the dictates of personal conscience”.
[79]
Central to the freedom “to follow the dictates of
personal conscience” is the oath of office. Members are
required
to swear or affirm faithfulness to the Republic and
obedience to the Constitution and laws.
[61]
Nowhere does the supreme law provide for them to swear allegiance to
their political parties, important players though they
are in our
constitutional scheme. Meaning, in the event of conflict
between upholding constitutional values and party loyalty,
their
irrevocable undertaking to in effect serve the people and do only
what is in their best interests must prevail. This
is so not
only because they were elected through their parties to represent the
people, but also to enable the people to govern
through them, in
terms of the Constitution. The requirement that their names be
submitted to the Electoral Commission before
the elections is
crucial.
[62]
The people vote for a particular party knowing in advance which
candidates are on that party’s list and whether they
can trust
them.
[80]
When the risk that inheres in voting in defiance of the
instructions of one’s party is evaluated, it must be
counter-balanced
with the apparent difficulty of being removed from
the Assembly. Openness is one of our foundational values.
[63]
And the Assembly’s internal arrangements, proceedings and
procedures must have due regard to the need to uphold the
value of
transparency in carrying out the business of the Assembly.
[64]
The electorate is at times entitled to know how their representatives
carry out even some of their most sensitive obligations,
such as
passing a motion of no confidence. They are not supposed
to always operate under the cover of secrecy.
Considerations of
transparency and openness sometimes demand a display of courage and
the resoluteness to boldly advance the best
interests of those they
represent no matter the consequences, including the risk of dismissal
for non-compliance with the party’s
instructions. These
factors must also be reflected upon by the Speaker when considering
whether voting is to be by secret
or open ballot.
[81]
Some consequences are adverse or injurious not so much to
individuals, as they are to our constitutional democracy. Crass
dishonesty, in the form of bribe-taking or other illegitimate methods
of gaining undeserved majorities, must not be discounted from
the
Speaker’s decision-making process. Anybody, including
Members of Parliament or of the Judiciary anywhere in the
world,
could potentially be “bought”. When that happens in
a motion of no confidence, the outcome could betray
the people’s
best interests. This possibility must not be lightly or naively
taken out of the equation as a necessarily
far removed and negligible
possibility when the stakes are too high. For, when money or
oiled hands determine the voting
outcome, particularly in a matter of
such monumental importance, then no conscience or oath finds
expression.
[82]
The correct exercise of Parliament’s powers in relation
to a motion of no confidence in the President, must therefore
have the effect of ensuring that the voting process is not a fear or
money-inspired sham but a genuine motion for the effective
enforcement of accountability. When that is so, the distant but
real possibility of being removed from office for good reason
would
serve the original and essential purpose of encouraging public
office-bearers to be accountable and fulfil their constitutional
obligations.
[83]
Each Member must, depending on the grounds and circumstances
of the motion, be able to do what would in reality advance our
constitutional
project of improving the lives of all citizens,
freeing their potential and generally ensuring accountability for the
way things
are done in their name and purportedly for their benefit.
So, the centrality of accountability, good governance and the
effectiveness
of mechanisms created to effectuate this objective,
must enjoy proper recognition in the determination of the appropriate
voting
procedure for a particular motion of no confidence in the
President. That voting procedure is situation-specific.
Some motions of no confidence might require a secret ballot but
others not, depending on a conspectus of circumstances that ought
reasonably and legitimately to dictate the appropriate procedure to
follow in a particular situation.
[65]
[84]
What then is to be done to safeguard the responsibility of
Members of Parliament to vote according to their conscience when it
is
necessary to enforce accountability effectively and properly,
without undermining the need to let them toe the party line when it
is undoubtedly appropriate to do so? A way must be found to
draw a line between allowing voting according to Members’
true
conscience and the important responsibilities or obligations Members
have to their parties, which would at times be in conflict.
[85]
The power to decide whether a motion of no confidence is to be
resolved through an open or secret ballot cannot be used
illegitimately
or in a manner that has no regard for the surrounding
circumstances that ought to inform its exercise. It is neither
for
the benefit of the Speaker nor his or her party. This power
must be exercised to achieve the purpose of a motion of no confidence
which is primarily about guaranteeing the effectiveness of regular
mechanisms. The purpose of that motion is also to enhance
the
enforcement of accountability by allowing Members of Parliament as
representatives of the people to express and act firmly
on their
dissatisfaction about the Executive’s performance in-between
general elections. It is fundamentally for the
advancement of
good governance through quality service delivery, accountability, the
strengthening of our democracy and the realisation
of the aspirations
of the people of South Africa. The exercise of the power to
determine the voting procedure must thus always
be geared at
achieving the purpose for which that power exists. The
procedure in terms of which the voting right is allowed
to be
exercised must brighten and enhance the prospects of the purpose for
which it was given being better served or advanced.
[86]
More importantly, the power that vests in the Speaker to
determine the voting procedure in a motion of no confidence, belongs
to
the people and must thus not be exercised arbitrarily or
whimsically. Nor is it open-ended and unguided. It is
exercisable
subject to constraints. The primary constraint
being that it must be used for the purpose it was given to the
Speaker –
facilitation of the effectiveness of Parliament’s
accountability mechanisms. Other constraints include the need
to
allow Members to honour their constitutional obligations, regard
being had to their sworn faithfulness to the Republic and irrevocable
commitment to do what the Constitution and the laws require of them,
for the common good of all South Africans.
[87]
The Speaker is chosen from amongst Members of the National
Assembly.
[66]
That gives rise to the same responsibility to balance party interests
with those of the people. It is as difficult
and onerous a dual
responsibility as it is for Members, perhaps even more so, given the
independence and impartiality the position
requires. But
Parliament’s efficacy in its constitutional oversight of the
Executive vitally depends on the Speaker’s
proper exercise of
this enormous responsibility. The Speaker must thus ensure that
his or her decision strengthens that particular
tenet of our
democracy and does not undermine it.
[88]
There must always be a proper and rational basis for whatever
choice the Speaker makes in the exercise of the constitutional power
to determine the voting procedure. Due regard must always be
had to real possibilities of corruption as well as the prevailing
circumstances and whether they allow Members to exercise their vote
in a manner that does not expose them to illegitimate hardships.
Whether the prevailing atmosphere is generally peaceful or toxified
and highly charged, is one of the important aspects of that
decision-making process.
Conclusion
[89]
In conclusion, when approached by the UDM to have the motion
of no confidence in the President voted on by secret ballot, the
Speaker said that neither the Constitution nor the Rules of the
National Assembly allow her to authorise a vote by secret ballot.
To this extent she was mistaken. The only real constraint that
stood in her way was the
Tlouamma
decision.
[90]
Our interpretation of the relevant provisions of the
Constitution and the rules makes it clear that the Speaker does have
the power
to authorise a vote by a secret ballot in motion of no
confidence proceedings against the President, in appropriate
circumstances.
The exercise of that power must be duly guided
by the need to enable effective accountability, what is in the best
interests of
the people and obedience to the Constitution.
[91]
To the extent that
Tlouamma
might have been understood
to have held that a secret ballot procedure is not at all
constitutionally permissible, that understanding
is incorrect.
The Speaker’s decision was invalid and must be set aside.
Remedy
[92]
This Court has been asked to direct the Speaker “to make
all the necessary arrangements to ensure that the motion of no
confidence
. . . is decided by secret ballot, including
designating a new date for the motion to be debated”. But
no legal
basis exists for that radical and separation of
powers-insensitive move. The Speaker has made it abundantly
clear that she
is not averse to a motion of no confidence in the
President being decided
upon
by
a secret ballot. She only lamented the perceived constitutional
and regulatory reality that she lacked the power to authorise
voting
by secret ballot. Meaning, now that it has been explained that
she has the power to do that which she is not averse
to, she has the
properly-guided latitude to prescribe what she considers to be the
appropriate voting procedure in the circumstances.
[93]
It may be necessary to add that her counsel reiterated during
the hearing that the Speaker is not really opposed to a secret
ballot.
The President’s counsel also said that the
Constitution neither requires nor prohibits but in reality permits a
secret ballot.
He went on to say a secret ballot does not
necessarily hold adverse consequences for the President. It
would thus be most
inappropriate to order the Speaker to have the
motion of no confidence in the President conducted by secret ballot,
as if she ever
said that she would not do so even if she had the
power to do so and circumstances plainly cry out for it. To
order a secret
ballot would trench separation of powers.
[94]
Whether the proceedings are to be by secret ballot is a power
that rests firmly in the hands of the Speaker, but exercisable
subject
to crucial factors that are appropriately seasoned with
considerations of rationality. This Court cannot assume that
she
will not act in line with the legal position and conditionalities
as now clarified by this Court. No legal or proper basis
exists
for that.
[95]
The Speaker’s decision that she lacks the constitutional
power to prescribe a secret ballot in a motion of no confidence in
the President is to be set aside. The UDM’s prayer for
the order that prescribes a secret ballot as the voting procedure
will be referred back to the Speaker to decide.
Costs
[96]
All parties to this application have recorded success against
the Speaker and the President. The unsuccessful parties are
therefore to pay the costs of the applicant and all other
participating respondents.
Order
[97]
In the result the following order is made:
1.
The United Democratic Movement is granted direct access.
2.
It is declared that the Speaker of the National Assembly has the
constitutional
power to prescribe that voting in a motion of
no confidence in the President of the Republic of South Africa
be conducted
by secret ballot.
3.
The Speaker’s decision of 6 April 2017 that she does not have
the power
to prescribe that voting in the motion of no confidence in
the President be conducted by secret ballot is set aside.
4.
The United Democratic Movement’s request for a motion of
no confidence
in the President to be decided by secret ballot is
remitted to the Speaker for her to make a fresh decision.
5.
The Speaker and the President must pay the costs of the United
Democratic Movement,
the Economic Freedom Fighters, the Inkatha
Freedom Party and the Congress of the People, including costs of two
counsel where applicable.
For the Applicant:
D Mpofu SC, K Pillay SC, S Budlender
and
N
Muvangua
instructed by Mabuza Attorneys
For the First
Respondent:
M T K Moerane SC and R T Tshetlo instructed by the State Attorney
For the Second
Respondent:
I A M Semenya SC, M Sikhakhane SC
and
M
Sello
instructed by the State Attorney
For the Fifth
Respondent:
T Ngcukaitobi, F Hobden and J Mnisi instructed by Kwinana &
Partners Inc
For the Sixth
Respondent:
A Katz SC and S Pudifin-Jones instructed by
Laurens De Klerk Attorneys
For the Eighth
Respondent:
L H Adams instructed by Mabuza Attorneys
For the First Amicus Curiae (Council
for the Advancement of the
South African
Constitution):
G Budlender SC, M Adhikari and M Mbikiwa instructed by the Legal
Resources Centre
For the Second Amicus Curiae
(Unemployed Peoples’
Movement):
N Bawa SC and M Bishop instructed by the Legal Resources Centre
For the Third Amicus Curiae (Institute
for Security
Studies):
N H Maenetje SC, R Tulk and Y S Ntloko instructed by Webber Wentzel
Attorneys
For the Fourth Amicus Curiae
(Shosholoza Progressive
Party):
D Unterhalter SC, M Musandiwa and M Finn instructed by Irene
Rome Attorneys & Conveyancers
[1]
The Preamble to the Constitution starts: “We, the people of
South Africa”.
[2]
Constitutional Principle VI in Schedule 4 to the interim
Constitution. See also
Certification of the Constitution of
Republic of South Africa
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
Certification
case) at para 45.
[3]
Sections 48, 62, 87, 95 and 174 of the Constitution.
[4]
Section 178 of the Constitution.
[5]
Section 174 of the Constitution.
[6]
Section 177 of the Constitution.
[7]
Sections 19 and 47 of the Constitution.
[8]
Section 51 of the Constitution.
[9]
Section 48 of the Constitution.
[10]
Section 52 of the Constitution.
[11]
Section 86 of the Constitution.
[12]
Section 87 and Schedule 2 item 1 of the Constitution.
[13]
Schedule 2 item 1 of the Constitution.
[14]
Sections 83, 84 and 85 of the Constitution. See also
Economic
Freedom Fighters v Speaker of the National Assembly
[2016] ZACC
11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) at paras 20-2.
[15]
Section 91 of the Constitution.
[16]
Section 93 of the Constitution.
[17]
Sections 91(2) and 93(1) of the Constitution.
[18]
Section 1(d) of the Constitution.
[19]
Sections 92(2), 92(3) and 93(2) of the Constitution.
[20]
Section 42(3) of the Constitution.
[21]
Section 237 of the Constitution.
[22]
Section 19 of the Constitution. See also the
Certification
case above n 2 at paras 106 and 186.
[23]
Section 102 of the Constitution.
[24]
Section 89 of the Constitution.
[25]
Section 34 of the Constitution.
[26]
Sections 91(2) and 93(1) of the Constitution.
[27]
Other Cabinet Members were also replaced in the same reshuffle.
[28]
Tlouamma v Speaker of the National Assembly
[2015] ZAWCHC
140; 2016 (1) SA 534 (WCC).
[29]
The EFF, the Inkatha Freedom Party and the Congress of the People,
are cited as the fifth, sixth and eighth respondents in this
matter. These respondents made common cause with the UDM and
were, for all practical purposes, its co applicants.
[30]
Council for the Advancement of the South African Constitution, the
Unemployed Peoples’ Movement, the Institute for Security
Studies and the Shosholoza Progressive Party.
[31]
Mazibuko v Sisulu
[2013] ZACC 28
;
2013 (6) SA 249
(CC);
2013
(11) BCLR 1297
(CC) at para 35;
Xolisile Zondi v Members of the
Executive Council for Traditional and Local Government Affairs
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at
para 12; and
Bruce v Fleecytex Johannesburg CC
[1998] ZACC 3
;
1998 (2) SA 1143
(CC)
;
1998 (4) BCLR 415
(CC) at paras 7-9.
[32]
Mazibuko
id and
Bruce
id.
[33]
Mazibuko
id at para 1.
[34]
Id at para 3.
[35]
Id at paras 20-2.
[36]
Id at para 74.
[37]
Id at para 66.
[38]
Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty)
Ltd v Smit NO
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10)
BCLR 1079
(CC) (
Hyundai
) at para 21.
[39]
Matatiele Municipality v President of the Republic of South
Africa
(2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1)
BCLR 47
(CC) (
Matatiele
) at para 36.
[40]
See [75].
[41]
In terms of sections 91(3)(c) and 93(1)(b), respectively, the
President may also appoint up to two Ministers and up to two Deputy
Ministers from outside the National Assembly.
[42]
Section 42(3) of the Constitution.
[43]
Section 42(3) of the Constitution.
[44]
Section 89 of the Constitution.
[45]
Mazibuko
above n 31 at para 43.
[46]
The National Assembly has delegated its power to determine the
appropriate procedure where express provision has not been made:
see
rules 6 and 26 of the Rules of the National Assembly.
[47]
Sections 102, 89, 42(3), 55(2) and 57 of the Constitution; see also
rules 6, 26, 102, 103, and 104 of the Rules of the National
Assembly.
[48]
See
[29] to [30].
[49]
Voting is also provided for in section 89 of the Constitution in
these terms:
“Removal of President
(1)
The National Assembly, by a resolution adopted with a supporting
vote of at least two thirds of its members, may remove the President
from office only on the grounds of—
(a)
a serious violation of the Constitution or the law;
(b)
serious misconduct; or
(c)
inability to perform the functions of office.
(2)
Anyone who has been removed from the office of President in terms
of
subsection (1)(a) or (b) may not receive any benefits of that
office, and may not serve in any public office.”
[50]
Section 102 of the Constitution.
[51]
Sections 86, 52 and 64 of the Constitution read with Part A of
Schedule 3 to the Constitution.
[52]
For example, the Constitution of the Republic of Korea requires a
secret ballot for general elections for the National Assembly
and
the President explicitly in articles 41 and 67 respectively; however
when it comes to impeachment of the President, article
65 is silent
on the voting method and only requires it to be “approved by
two thirds or more of the total members of the
National Assembly”,
while it is article 130 of Chapter XI of the National Assembly Act
of the Republic of Korea that indicates
that “a secret vote
shall be taken to determine whether a motion for impeachment is
adopted”. Similarly in
Singapore, article 22L(4) of the
Constitution of the Republic of Singapore, which deals with the
impeachment of the President,
only requires the motion to be adopted
by “not less than half of the total number of Members of
Parliament”, but
remains silent on the voting method. In
Kenya, articles 144 and 145 of the Constitution which deal with the
removal of
the President on grounds of incapacity and by
impeachment, both remain silent on the voting method. Further,
in the German
Basic Law, article 61 which deals with impeachment
remains silent on the voting method and only says that “[a]
decision
to impeach requires a majority of two thirds of the members
of the House of Representatives or of two thirds of the votes of the
Senate”. See also [72] regarding the voting system in
the National Assembly of Zimbabwe.
[53]
Id.
[54]
Convention on the Standards of Democratic Elections, Electoral
Rights and Freedoms in the Member States of the Commonwealth of
Independent States, 7 October 2002.
[55]
Botswana Democratic Party v Umbrella for Democratic Change
Case No CACGB-114-14 at para 76.
[56]
Moyo v Zvoma
Case
No SC 28/10, quoted with approval in
Botswana
Democratic Party
id at para 55.
[57]
Section 27
of the
Electoral Act 73 of 1998
.
[58]
Section 47(3) of the Constitution. This is not to suggest that
a political party may remove a Member at whim.
[59]
In fact, it was only for a very brief period since the dawn of our
democracy that this was not the case.
[60]
Certification
case above n 2 at paras 106 and 186.
[61]
Section 48 of the Constitution read with item 4 of Schedule 2.
[62]
Section 57(A)
of the
Electoral Act.
[63
]
Section 1(d) of the Constitution.
[64]
Section 57(1) of the Constitution.
[65]
This is the meaning that flows from a contextual and purposive
interpretation envisaged in
Hyundai
and
Matatiele
.
[66]
Section 52(1) of the Constitution.