High court rejects ATM's application on Phala Phala secret ballot

The Western Cape High Court has dismissed the ATM’s application to set aside National Assembly speaker Nosiviwe Mapisa-Nqakula's decision to decline its request for a secret ballot on the adoption of an independent panel’s report into the president’s conduct in the Phala Phala scandal.  

 The report recommended that President Cyril Ramaphosa had a case to answer for possible serious violations of the constitution and the law over Phala Phala. Had parliament adopted the report, it would have paved the way for a parliamentary impeachment inquiry. 

A full bench of the court found that the ATM’s application was “manifestly moot”, or academic, in that granting the order sought by the ATM would have no practical effect. 

The judges — Andre le Grange, Ashley Binns-Ward and Daniel Thulare — said a decision on whether a vote in parliament should be taken by open or secret ballot had to be made by looking at “the surrounding circumstances immediately prevailing when the National Assembly is scheduled to vote”.

That much had been made clear in an earlier judgment of the Constitutional Court, they said.  

If a court is called upon to pronounce on the legality of a secret or open ballot, it must be done urgently. “If it is not done, the circumstances to be taken into account will have changed,” they said.  

If the decision is revisited “months later”, a new decision would need in any event to be taken because the surrounding circumstances would have changed. “The prior decision will be redundant. Setting it aside will be of no practical effect,” they said. 

The court found that the resolution itself — not to adopt the report — was validly adopted. It was not persuaded that MPs were “straightjacketed” by the speaker’s decision to hold an open ballot.  

The rules of parliament allowed both open and closed ballots, said the judges.  

“It does not seem to us to follow that a resolution adopted in an open vote … 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 a secret one. 

“The validity of the voting depends not on whether the vote was conducted by open or secret ballot but whether members voted without undue or dishonest influence,” they said. 

The court said the fact that ANC MPs were directed by their party to vote against adopting the report would not be enough to invalidate the resolution. Under the current electoral system, voters vote for political parties, said the judgment.  

Nor was it unacceptable in an open and democratic society for a party to direct its MPs to vote according to a predetermined position, said the judgment. “That is where the role of party whips come into play,” said the judges.  

The system of whips did not mean an MP was forced to vote along party lines, said the judgment. It only meant that they laid themselves open to party discipline if they did not.  

The ATM’s argument was that the resolution was unlawful because the decision to refuse a secret ballot was unlawful, said the judges. But the one did not follow from the other, they said: “We do not accept that is sufficient basis … to set aside the resolution. 

“In the face of that fact, the ATM’s challenge to the speaker’s decision to refuse its request for a secret ballot is manifestly moot.”

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