Judgment has been reserved in the “secret ballot” case brought to the Constitutional Court by the United Democratic Movement.
The dramatic, protracted arguments had the country’s top legal minds racing.
The president’s advocate, Ishmael Semenya, conceded that there was no downside to having a secret ballot the vote of no confidence in President Jacob Zuma, while the advocate for National Assembly Speaker Baleka Mbete, Marumo Moerane, conceded that the Speaker needed to act according to the rules of Parliament, which permit a secret ballot.
Arguments finally came to an end just before 8pm, and Chief Justice Mogoeng Mogoeng thanked all legal representatives for their arguments.
“You have no idea how challenging it was to try and conceptualise the issues properly until we had the benefit of your submissions. We are truly and genuinely indebted to you for the enlightenment.”
Afterwards UDM leader Bantu Holomisa seemed upbeat with the day’s proceedings.
“There is no doubt in anybody’s mind that we have been vindicated when we originally said that the Speaker has discretion and she should use that discretion. But today they conceded that indeed she has the powers to conduct that vote through a secret ballot. We welcome this concession.”
The Economic Freedom Fighters’ leader Julius Malema was also confident of victory.
“We are going to win this. On the day of the motion of no confidence there will be a national shutdown. There must be a complete shutdown in support of the MPs so they can see that the people are tired,” he said.
The UDM argued that allowing for a secret ballot to be held during the motion of no confidence vote would allow members of the house to feel safe enough to vote with integrity.
Speaking on behalf of the UDM, Dali Mpofu said all South Africans wanted was to know that the members of Parliament who had been elected to represent them, were voting with integrity and that a secret vote would ensure that.
“We are giving reasons of why it must be there, but no one has told us what is wrong with it. The real thing that all South Africans want to know is that: does the president continue to enjoy the confidence of members of Parliament? That is all. It’s a very simple antidote that we are waving to the court.”
Mpofu argued that Mbete had failed to hold the executive to power after receiving a request to table the motion of confidence in a letter addressed to her in April, as she was obligated to do.
“The source of all this is the obligation of Parliament to hold the executive to account. That obligation starts the minute those members of Parliament are sworn in, continual obligation is the motion of no confidence.”
Mpofu said the speaker of National Assembly had the duty to schedule or arrange for a date and a vote.
“She also has a choice to choose the method of vote, and she has abdicated to do so. She is the embodiment of Parliament. The Speaker must be seen in her multiple roles.”
Mpofu contended that the notion of a secret ballot was prescribed by the Constitution, which meant that the argument that it would undermine openness and integrity did not hold.
He also argued that the reported threats against the lives of some MPs should also be considered as their rights needed to be protected.
“Why is it that the Constitution prescribes a secret ballot? To protect the voter against possible intimidation, risk of any threats, of any adverse consequences. What we are saying is that the mere risk of something happening constitutionally compels us to prescribe the secret ballot,” Mpofu said.
Mogoeng asked whether those who had drafted the Constitution had done so mindful of the principle of the separation of powers, saying the drafters would have wanted Parliament to decide how it wanted the motion of no confidence to be conducted, independently.
Mpofu responded by saying that could have been the case, but added that the court was neither prescribing nor prohibiting the secret ballot on behalf of the National Assembly.
“We are then saying it’s up to you [National Assembly]. But that is a far cry from what is being contended by the respondents, that it is rather being excluded,” Mpofu said.
The assumption that MPs would vote differently in a vote of no confidence if it were to be conducted in secret, was wrong, Semenya argued before the full bench.
“There’s a subliminal assumption that voting with a whip is not in line with voting with one’s conscience.”
He dismissed the argument that MPs faced repercussions and placed themselves at risk if they openly voted against the party line.
“This risk, we don’t know its magnitude. They may be able to handle this risk.”
Moerane told the court that Mbete was bound by the decisions of the National Assembly and could not override them.
Mogoeng asked Moerane if, based on the provisions in the Constitution, it was permissible for the National Assembly to conduct the vote by secret ballot.
“It is permissible, if the National Assembly decides to do it that way. The issue is if it is obligatory,” Moerane said.
“Our submission is that there is no such obligation flowing from the Constitution.”
He said the National Assembly had determined its own rules and it, and not the courts, should decide how to conduct a motion of no confidence.
Earlier in the day Malema warned that if a Parliamentary motion of no confidence in Zuma succeeded, he would still try to remain in office.
He said Zuma would argue that the ANC did not tell him to go.
“Be prepared for dictatorship … but we are not scared,” he told a large crowd of opposition party supporters in Mary Fitzgerald Square in Johannesburg.
“If Parliament says he must leave, and he refuses to leave, we will break him out of the union buildings by force.”
Opposition parties had gathered at the square while the Constitutional Court was hearing the application.
The parties marched to the court from the square.
“We are today from different political parties, joined by civil society. [The] court must hear us today that we want to protect the Constitution of our country,” Malema said.
“There will never be a democracy without a secret ballot. ANC members of Parliament are being intimidated [to prevent them voting against Zuma]. We have a responsibility to defend each and every member of Parliament – we must even protect ANC members.” – Additional reporting by News24