UNITED DEMOCRATIC MOVEMENT v SPEAKER OF THE NATIONAL ASSEMBLY & 13 OTHERS  ZACC 21 (22 June 2017)
On 31 March 2017, the President of the Republic of South Africa sacked the then Minister and Deputy Minister of Finance (Mr. Pravin Gordhan and Mr. Mcebisi Jonas). Soon after the dismissals, South Africa’s economy was downgraded to a sub-investment grade or “junk status”. This prompted the applicant and two other political parties (Democratic Alliance [DA] and Economic Freedom Fighters [EFF]) to call on the 1st respondent to schedule a motion of no confidence in the President. The motion was scheduled for 18 April 2017. Before the date for the motion, the applicant requested the 1st respondent, through a letter dated 6 April 2017, to prescribe secret ballot as the voting procedure for the motion. In its letter, the applicant conceded that there was no express provision in the Rules of the National Assembly on secret ballot for such motion. However, the applicant contended that some direction could be found through a combined reading of sections 57 and 86(2), item 6(a) Part A of Schedule 3 to the Constitution and rule 2 of the Rules of the National Assembly. The 1st respondent refused the applicant’s request. She argued that the Constitution and the Rules of the National Assembly that regulate voting procedures in the National Assembly do not make provisions for secret ballot as the voting procedure for the motion. For this, she relied on the Western Cape High Court case of Tlouamma v Speaker of the National Assembly  ZAWCHC 140 where it was held that there was no implied or express constitutional requirement for voting by secret ballot on a motion of no confidence in the President. On the basis of this, she concluded that she had no authority in law or under the Rules of the National Assembly to prescribe secret ballot as the voting procedure for the motion. The foregoing necessitated the filing of this application wherein the applicant sought an order nullifying the 1st respondents’ refusal to prescribe a secret ballot and directing the 1st respondent to prescribe secret ballot for the motion as scheduled, among others.
After reiterating that it has jurisdiction on the grounds that applicants had direct access to the Constitutional Court under section 167(6) of the Constitution to determine the application, the Constitutional Court proceeded to determine the following issues:
- What is the nature and purpose of a motion of no confidence?
- Whether the Speaker has the powers to prescribe a secret ballot as voting procedure in a motion of no confidence
- How the power to prescribe a voting procedure for a motion of no confidence can be properly exercised
Issue 1 – What is the nature and purpose of a motion of no confidence?
A motion of no confidence is one of the constitutionally guaranteed mechanism for ensuring accountability, good governance and responsiveness required of the President under section 92 of the Constitution. It is a fatal accountability-ensuring mechanism that leads to removal of the President from office. The other fatal accountability-ensuring mechanism is impeachment under section 89 of the Constitution. Other less fatal accountability-ensuring measures include regular account to parliamentary Portfolio committees by Ministers; response to questions by Ministers during National Assembly sittings; State of the Nation Address, and Budget speeches. Specifically, section 102 of the Constitution provides for motion of no confidence. 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 (in the exercise of their powers under section 55 of the Constitution), to express and act firmly on their dissatisfaction with the Executive’s performance. It constitutes a threat to 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 effective.
This measure would ordinarily be resorted to when the people’s representatives have virtually given up on the President or Cabinet. However, a motion of no confidence will be virtually inconsequential in the absence of an effective operationalising mechanism. A motion of no confidence is, in some respects, potentially more devastating than impeachment. It does not necessarily require any serious wrong doing, though this may be 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 on the President affects the entire Cabinet. The Constitution does not say when or what grounds it would be fitting to resort to a motion of no confidence. As to when and how, 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 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.
Issue 2 – Whether the Speaker has the powers to prescribe a secret ballot as voting procedure in a motion of no confidence
Section 102 of the Constitution, which relates to motion of no confidence, and other relevant sections of the Constitution and Rules of the National Assembly relating to voting do not expressly provide for vote by secret ballot in a motion of no confidence. To answer this question, it is important to interpret the relevant sections of the Constitution contextually and purposively. In other words, the context, purpose, South African values and vision or spirit of transitioning from division, exclusion and neglect to a transformed, united and inclusive nation, led by accountable and responsive public officer-bearers, must always be the guide to the correct meaning of Constitutional provisions. Section 19(3)(a) of the Constitution prescribes secret ballot for general elections. Section 50(1) of the Constitution does not provide a voting procedure for a resolution for dissolution of the National Assembly. Section 52 of the Constitution does not stipulate a voting procedure for the removal of the Speaker and Deputy Speaker and the election of other presiding officers of the National Assembly. But it refers to the voting procedure set out in Part A of Schedule 3 of the Constitution for the election of the Speaker and Deputy Speaker. Similarly, section 86 of the Constitution refers to the voting procedure in Part A of Schedule 3 for the election of the President. Specifically, Part A of Schedule 3 of the Constitution prescribes secret ballot voting and ordinary majority of National Assembly members present for the election of the President. Section 102 of the Constitution requires a vote supported by a majority of National Assembly members to pass a vote of no confidence in the President. The section did not express a choice of open or secret ballot. The duty to make this choice rests on the National Assembly by virtue of its power under section 57 of the Constitution. Therefore, the National Assembly 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 National Assembly to determine what would best advance the South African Constitutional vision or project. 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, provisions 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. The Constitution would have made it clear that voting would always be by open ballot. Pursuant to its power under section 57 of the Constitution, the National Assembly made rules 102, 103 and 104 relating to voting. Generally, rules 103 and 104 provide for an open ballot voting system and procedure. However, rule 104(1) and (3) empower the Speaker to predetermine a secret ballot system and procedure. The exercise of the power by the Speaker 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. In sum, rule 104(1) and (3) empowers the Speaker to have 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 judgment call to make, having due regard to what would be the best procedure to ensure that members exercise their oversight powers effectively. This position accords with the dictates of separation of powers enshrined in the Constitution. It affirms the functional independence of parliament to freely exercise its section 57 powers.
Issue 3 – How can the power to prescribe a voting procedure for a motion of no confidence be properly exercised?
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 election and a contested election of the President and the Speaker. A secret ballot is deemed necessary to enhance the freeness and fairness of an election. It 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. It also allows members to choose who they truly believe to be the best presidential material for the country without fear of reprisals. 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 this potential risk would 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? The appropriateness of a voting procedure for the motion is particularly important since the 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 and who is no longer allowed to represent in parliament. 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 and she/he has significant input in the appointment or election of senior office-bearers in parliament. 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 for the position of President.
Thus, 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. The oath of office is central to this freedom. Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties. The Speaker must endeavour to counterbalance the risk involved in voting against one’s party instructions with the apparent difficulty of being removed from the National Assembly. The Speaker must also weigh this risk against the foundational values of openness and the entitlement of the electorate to know how their representatives carry out some of their most sensitive obligations, such as passing a motion of no confidence. Parliament is not supposed to always operate under the cover of secrecy. Moreover, crass dishonest, in the form of bribe-taking or other illegitimate methods of gaining underserved majorities, must not be discounted from the Speaker’s decision-making process. The correct exercise of parliament’s powers in relation to a motion of no confidence in the President, must 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.
So, the centrality of accountability, good governance and the effectiveness of mechanisms created to effectuate the objectives, 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. 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. The power must be exercised to achieve the purpose of a motion of no confidence. The power belongs to the people. The Speaker cannot exercise the power arbitrarily or whimsically. The power is not open-ended and unguided. It is exercisable subject to constraints. The primary constraint being that it must be used for the 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.
The Speaker’s stand that the Constitution of South Africa and the Rules of the National Assembly do not allow her to authorise a vote by secret ballot is mistaken. The Constitution and the Rules make it clear that the Speaker has power to prescribe a vote by secret ballot in a motion of no confidence in the President in appropriate cases. The exercise of the power must be duly guided by the need to enable effective accountability, promote the best interest of the people and ensure obedience for the Constitution. The Tlouamma’s case is not authority for the position that a secret ballot is not constitutionally permissible in a motion of no confidence. The Speaker’s decision that the secret ballot is not constitutionally permissible is invalid and must be set aside. However, the judgment call to authorise a secret ballot is entirely that of the Speaker. Under the principle of separation of powers, the court cannot compel the Speaker to prescribe a vote by secret ballot for the motion of no confidence.