ATM appeals the ruling on secret ballot for Phala Phala report

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The African Transformation Movement (ATM) has approached the supreme court of appeal (SCA) for leave to appeal the high court’s dismissal of its bid to overturn the National Assembly vote that rejected a report recommending that President Cyril Ramaphosa face an impeachment tribunal over the Phala Phala controversy.

The ATM argues that in holding that the Constitution enjoins the assembly to carry out its work in an open manner but allows exceptions, the Western Cape high court departed from an earlier SCA ruling which rejected the speaker’s view that an open ballot is the default position.

A full bench of the high court said in a judgment handed down earlier this month that this stance of the speaker’s derives its force from section 59 (1) (b) of the Constitution.

This section states that the National Assembly must “conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken”.

But the ATM argued in papers filed this week that neither the SCA nor the constitutional court have, in protracted litigation on the subject, recognised a general rule.

The party approached speaker Nosiviwe Mapisa-Nqakula in December, ahead of the legislature’s vote on a section 89 report that held the president had a case to answer on the burglary at his Phala Phala game farm, to ask that she declare a secret ballot.

She declined both the initial request and another to reconsider her decision.

In court papers opposing the application, Mapisa-Nqakula stressed that her decision was informed by her belief that, given the importance of the vote, a transparent process would enhance public trust in parliament and help to hold MPs accountable to the people who elected them because it would be plain for all to see how they voted.

The report by a panel headed by former chief justice Sandile Ngcobo was rejected 

by 214 votes to 149.

The vote was conducted through a roll call and the majority of ANC members heeded party instructions not to support the report, which had brought Ramaphosa to the brink of resigning.

The ATM asked the high court not only to invalidate the vote but to substitute the decision to hold an open vote with one of its own, declaring a rerun by secret ballot.

Substitution is a remedy rarely granted, but the party said it was pointless to send the decision back to the speaker because she has repeatedly failed to apply the law correctly when confronted with this question.

The party made much, in its papers and in pleadings before the court, of an unscripted remark by Mapisa-Nqakula to parliament’s National Assembly programming committee before the vote.

She said: “Honourable Zungula, the reasons given, right, did not assist us, do not enable us, to take an informed decision in a sense.

“You know that once you say secret ballot, it has to be extraordinary circumstances, and that is the only reason why you were not granted a secret ballot.”

ATM leader Vuyo Zungula argued that this flew in the face of the SCA’s pronouncement that there was no default position of either an open or secret ballot, but instead: “The slate is clean.”

Hence, the appellate court held, there was no obligation on the party requesting a secret ballot to submit concrete proof as to why circumstances demanded one.

From the speaker’s insistence on such, Justice Trevor Gorven said, it was clear that she did not properly understand her discretion to whether a secret ballot would allow MPs to exercise their oversight duties more effectively.

“She asked the wrong question,” he concluded, in reference to a decision regarding an earlier request by the ATM for a secret ballot on a motion of no confidence in Ramaphosa.

In this case, the ATM also stressed the pressure placed on members of the ANC by a party directive to reject the section 89 report, and a reported death threat against rebel ruling MP Mervyn Dirks.

Zungula has argued that it was hard to imagine a more toxic atmosphere than that which prevailed on the day, and that the speaker could not rationally reach the conclusion she did because she had evidence that ANC MPs were threatened with disciplinary action if they defied their whip. 

Mapisa-Nqakula, in her communication on the subject, said there was no specific evidence that members of the ruling party were prevented from voting according to conscience, in line with their constitutional obligation.

In argument to the bench, advocate Tembeka Ngcukaitobi said the ATM had failed to field any evidence that ruling party members were subjected to undue pressure that prevented them from doing so.

The ATM was crying foul because the outcome of the vote was not what it had desired but, furthermore, party discipline was an accepted fact in democracies around the world. Had any member of the ANC been disciplined for taking a principled decision, he or she could plead conscience in the disciplinary process, he said.

The court concurred with the point on party discipline, saying such could not be considered “undue hardship”, and the system of whips did not mean that an MP was compelled to vote according to the party’s directions — only that he or she may lay themselves bare to discipline and expulsion as a result.

It concluded that the ATM had read too much into the speaker’s comment to the programming committee.

“A death threat against a single member of a 400-member legislature also does not seem to us to provide a sufficient basis for a court to intervene by invalidating a resolution adopted by the legislature.”

It added that the SCA’s directive that she must approach a request with an open mind did not mean that she must do so with a vacuous mind or ignore the constitutional provision of openness.

“In our judgment, nothing in the evidence supports the ATM’s allegation that the speaker acted in bad faith.” 

It concluded that the matter had become moot, barring evidence that the vote was rendered unlawful, for example by evidence that members of assembly had been bribed.

“It does not seem to us that to follow that a resolution adopted in an open vote by the members of the National Assembly on a motion that the members had debated in public procedures as required by section 59 of the constitution should be susceptible to being set aside by a court merely because before the event a case could have been made out that the speaker should have directed that the vote be secret.”

In asking for leave to appeal the ATM said it was, at least, important to attain legal clarity on the subject because this would not be the last instance where a secret ballot would be requested.

“The questions are of public importance and are likely to arise in future disputes.”

An appeal is not without consequence. Ramaphosa elected not to approach the high court after the constitutional court denied him direct leave to appeal its decision not to hear his application to review the section 89 report. But the president’s legal advisors have been keeping a close eye on how the litigation in this case unfolds.