High court hears debate on whether secret ballot serves constitution

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Are members of parliament constitutionally obliged to obey their conscience, rather than their whip, when called to hold the executive to account?

The question was debated between a full bench of the Western Cape high court and counsel for the African Transformation Movement (ATM), which is asking the court to set aside the National Assembly’s vote to reject the report that recommended President Cyril Ramaphosa face an impeachment inquiry.

The ATM contends that the vote is vitiated by speaker of the National Assembly Nosiviwe Mapisa-Nqakula’s refusal to allow MPs to vote by secret ballot. 

On the party’s argument, her decision was irrational because the political climate was so toxic, a fortnight before Ramaphosa was seeking re-election at the ANC’s elective conference, that ruling class MPs risked expulsion, or worse, if they supported the Ngcobo report. 

Justice Daniel Thulare suggested the ATM was on a fishing expedition because its  submission that ANC members were too fearful to vote according to their conscience had no probative value. Only ruling party members could say whether they were in fact intimidated into adopting a position not in line with their integrity.

Instead, he added: “We have a very loud silence from the ANC.”

Advocate Anton Katz SC, for the ATM, said this was neither here nor there as the test was whether there was a real threat of repercussions, noting that the constitutional court held in the Nkandla case that this was sufficient.

In a matter as crucial as voting on whether the president should face an impeachment inquiry for serious breach of the constitution in the Phala Phala scandal, he said: “There should be no whippery and there should be no possibility of discipline when it comes to holding the executive to account.”

Thulare said the reality was that members of all political parties, not only the ANC, faced a threat of sanction if they did not heed their whip, to which Katz replied that this “made it worse”, in the sense that it called into question every vote cast on 13 December. 

The judge commented that it seemed the ATM wanted a legislature “full of shrinking violets … not persons of character who stand up and say while the nation is watching, this is my position”.

He went on to add that the constitution was silent on MPs acting according to conscience, but spoke instead performing their functions to the best of their ability but Katz said this issue was settled authoritatively by then Chief Justice Mogoeng Mogoeng in the Nkandla matter. 

“The chief justice said when they vote according to their party, they vote to their conscience, subject to the constitution and he used the word conscience, not my client, my client only uses the words ‘as articulated by the constitutional court’.”

The issue was perhaps most publicly raised not by Mogoeng but by his successor Raymond Zondo. He said in the context of the inquiry into state capture that the phenomenon could have been curtailed — and he raised this within the context of a vote of no confidence against former president Jacob Zuma — had members of the legislature regarded their loyalty as lying with the electorate and not the ruling party.

Justice Ashley Binns-Ward noted that the electorate was entitled to know the decisions lawmakers took, and asked whether the objective of openness was not to compel lawmakers to act in a manner that held them accountable to the electorate.

“How do you hold them as a parliament accountable if you don’t know what they are doing?”

Katz said the objective was to hold the executive, and in this instance more precisely the president, to account. The correct test for the speaker to apply was therefore to ask which method of voting would best allow the legislature to carry out its constitutional duty in this regard. 

He added that if the speaker did not consider the climate that prevailed at the time of the vote toxic, he did not believe she would ever deem it sufficiently so to accede to a secret ballot.

“How toxic does it have to become, so toxic that the poison actually kills?

“There is nobody in this room who would tell you that the State of the Nation address last week was peaceful. But if you ask the speaker: ‘Oh well, it’s a robust environment.’”

The speaker had, in her answering affidavit, answered the judge’s question in the affirmative, saying 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.

Nosiviwe Mapisa-Nqakula also said that she had balanced Zungula’s reasons for requesting a secret ballot versus the “foundational constitutional principle of openness” and the “constitutional imperative” for the National Assembly to conduct its work in an open manner.

Advocate Steven Budlender, SC, for the speaker, dismissed the ATM’s contention that she had again, wrongly, adopted the approach that openness was the default position and that she had to weigh whether there was reason to deviate from it.

In ATM v Speaker of the National Assembly and Others  the supreme court of appeal (SCA) in 2021 had rejected the speaker’s stance that, when confronted with such a decision, the requesting party had to provide proof that there were exceptional circumstances that demanded she deviate from the “default” principle of openness. 

The court said there was no default position of either an open or secret ballot, but instead: “The slate is clean.”

On Katz’s argument, the speaker had made exactly the same mistake again, but Budlender accused his opponent of cherry-picking from the judgment. He said the court had held that imposing an onus on the party requesting a secret ballot showed a fundamental misunderstanding of the discretion the speaker had to exercise. 

Hence, by requiring proof, she had asked the wrong question, rather than to reflect on what would best allow MPs to exercise their oversight powers effectively.

“That ratio has not been breached,” he said.

“To pick out of the judgment references to clean slate here, starting point there, that is not how you read a judgment, you read a judgment in context, in full.”

He said legal precedent, which on the face of it is against his client, did not mean that the constitutional call to openness should not serve as a point of departure when a decision of this nature should be made.

Budlender then cited United Democratic Movement v Speaker of the National Assembly and Others where the Constitutional Court in 2017 dispensed with the notion, held by then speaker Baleka Mbete, that she did not have the power to call a secret ballot.

“You fill the clean slate by going to the considerations set out in UDM, now among those considerations are the founding value of openness, which is binding on the National Assembly.”

Another consideration was whether there was a toxic environment. 

“None of these were determinative. It is not a mathematical formula, but those are the factors that you have to take into account. But what you cannot do, with respect, is what our learned friend seeks to do and say ‘well, this is a debate about openness versus accountability.

“That is a false dichotomy. Because you can have openness and accountability … because that is what the constitutional court said.”

He said there was extensive case law stating that openness was a default position for the courts and parliament, as a result of what is written in the constitution. The aim was to ensure transparency and accountability in the manner in which the courts and all organs of state operated.

The correct view was therefore not to pitt the two concepts against each other but to see openness as essential to affecting accountability.

“Openness is not adverse to accountability, it ensures accountability … because if MP Smith is going to vote in favour or against impeachment, we all know, and judgments can be made and one can if needs be say within the party to MP Smith, why did you vote against the party line? And a debate can happen.”

If it transpired that said MP was bribed, for example, this could come to light. If the vote happened in secret, nobody would be any the wiser, Budlender continued.

“If the public has a right to see members of parliament swing their fists at each other or the security guards, how much more does the parliament have a right, at core, to see how people vote on a ballot of fundamental importance.”:

MPs voted 214 to 149 to reject the report by a panel headed by former Chief Justice Sandile Ngcobo that found Ramaphosa had a case to answer in relation to the Phala Phala scandal.

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

The hearing would continue on Tuesday, when the court will hear arguments from Advocate Tembeka Ngcukaitobi, for the ANC.