PARLIAMENT

No-confidence motion against President Ramaphosa put on hold pending a court tussle

By Marianne Merten 3 December 2020

A last-minute court application meant a last-minute change in the House to postpone the no-confidence motion against President Cyril Ramaphosa to 2021. That’s the straightforward bit. Less so, the tussle over the secret ballot the African Transformation Movement insists on.

National Assembly Speaker Thandi Modise had the last word on Thursday just after 2pm. “I have looked at the rules, and I have decided to postpone the debate and the vote on the motion.” 

And it was up to the speaker to make that decision. After the Western Cape High Court, in judges’ chambers, agreed to hear the African Transformation Movement (ATM) challenge against the decision for an open ballot on 3 and 4 February 2021, ATM leader Vuyo Zungula had to formally ask for the postponement. 

“ATM wishes to postpone the motion until the finalisation of the court proceedings,” he wrote to Modise in a letter seen by Daily Maverick

Even though many matters parliamentary are taken to the courts – from the lack of rules and the wrong application of the rules, to disciplinary proceedings – the courts have refrained from telling Parliament how to run its business. If judges have found there was a problem, Parliament has been told to fix its house itself. 

That happened in November 2012 when then DA parliamentary leader Lindiwe Mazibuko, in the final days of the parliamentary calendar, went to court to schedule a no-confidence motion against then president Jacob Zuma. And while the Western Cape High Court found there was indeed a lacuna in Parliament’s rules, it was up to the national legislature to fix that. 

It happened in mid-2017 when the United Democratic Movement directly, and successfully, approached the Constitutional Court over a secret ballot. 

“The Speaker’s decision of 6 April 2017 that she does not have the power to prescribe that voting in the motion of no confidence in the president be conducted by secret ballot is set aside,” the Constitutional Court ruled on 22 June 2017. 

“The United Democratic Movement’s request for a motion of no confidence in the president to be decided by secret ballot is remitted to the Speaker for her to make a fresh decision.” 

MPs could not always operate under the cover of secrecy, the court found, as the electorate was at times entitled to know how their MPs conduct themselves, even in their most sensitive obligations. 

“Considerations of transparency and openness sometimes demand a display of courage and the resoluteness to boldly advance the best interests of those they represent no matter the consequences, including the risk of dismissal for non-compliance with the party’s instructions. These factors must also be reflected upon by the Speaker when considering whether voting is to be by secret or open ballot.” 

On 7 August 2017 the then speaker Baleka Mbete finally made that decision. “I determine the voting in the motion of no confidence in the president on the 8th of August will be by secret ballot.” 

Vote of no Confidence: Baleka Mbete decides on secret ballot, opposition parties say it’s time to put country above party

A day later Zuma survived, but the secret ballot vote showed some 35 ANC MPs had broken the party line – 198 MPs voted against the no-confidence motion, 177 for, with nine abstentions. 

Motion of No Confidence: The ANC wins the battle but what about the electoral war of 2019?

How is this relevant now, as the ATM pushes for a secret ballot in its no-confidence motion against Ramaphosa?

Only a secret vote will allow the possibility of testing the waters of Ramaphosa’s support, at least in his ANC parliamentary caucus. It’s unlikely the motion will muster the required majority of 200 plus one in the House, but it would be a key test – alongside the opportunity for opposition parties to criticise Ramaphosa’s administration.

No confidence motion against Ramaphosa – an opportunity for critics to let rip

But even if Modise’s decision against a secret ballot was indeed found to be biased and irrational, as the ATM says in its court papers, the judges are unlikely to tell Modise what she must decide.

The Speaker, in letters to the ATM, now part of the court documents, has emphasised the Constitution’s foundational values of transparency, accountability and openness as reasons for an open vote. 

“I am of the view that the prevailing atmosphere is not as toxified and highly charged as to warrant dispensing with the constitutional values of openness and transparency,” Modise wrote to Zungula on 30 November. 

“The Constitution further instructs that the National Assembly must conduct its business in an ‘open manner’ in finding the balance between the constitutional imperative of ‘transparency and openness’….” 

Additionally, the Covid-19 health protocol that allowed just 250 people in the House, including presiding officers and table and support staff, was a serious challenge for a secret ballot. MPs joining sittings via virtual platforms leave electronic trails that identify them. 

On that point, the ATM is proposing a sitting of 230 MPs to cast their secret ballot, followed by the remaining MPs to cast their secret ballot. 

“We reiterate that the political atmosphere is as it was in the time the vote of no confidence was moved by the United Democratic Movement in 2017 that resulted to [sic] the Constitutional Court judgment involving this matter,” wrote ATM’s lawyers, M Magigaba Incorporated Attorneys, to the Speaker on 30 November. 

As far back as 24 February, letters from Zungula to the Speaker proffered South Africa’s culture of political killings as a reason MPs would fear an open ballot. 

“It is common cause that some members of the governing party may have been persuaded by the solid grounds for the motion of no confidence in President Ramaphosa, but may be constrained by [the] party line which in terms of their obligation to their ‘oath of office and to the people of South Africa’ is inconsequential.” 

Elsewhere in the correspondence there emerge other claims of bias without a secret ballot: “It is also common cause that money played a pivotal role in the election of President Ramaphosa such that even now the funders of his campaign are still sealed by the court.” 

However, Zungula in his court affidavit argues the no-confidence motion is an important tool to hold the president to account. 

“It constituted a threat of the ultimate sanction the National Assembly can impose on the president should there be a reasonable perception that he had failed to carry out his constitutional obligations.”  

Zungula told Daily Maverick that the ATM had nothing to do with the ANC or any of its factions. 

“When people are trying to say ATM is playing politics it is a way to create a perception of the ATM – and of not listening to the message. We have no intentions of working with anyone in the ANC. We are working for the cause of South Africa’s people.” 

But, in a political institution like Parliament, what’s on the surface isn’t necessarily what bubbles below.  

The ANC parliamentary caucus is not unified behind Ramaphosa. Committee chairpersons, such as Bongani Bongo (home affairs), Joe Maswanganyi (finance), Mosebenzi Zwane (transport), Supra Mahumapelo (tourism) and Tandi Mahambehlala (international relations), have nailed their colours to the mast by appearing in public at a Bloemfontein court when ANC Secretary-General Ace Magashule appeared there in November. Others are more low profile on the parliamentary benches. 

As the no-confidence motions against Zuma have shown, the ANC has always circled its wagons; in 2017 such a vote was even likened to regime change attempts. 

That only changed after the 2017 Nasrec ANC conference elected Ramaphosa as party president. The EFF’s no-confidence motion against Zuma was scheduled for 22 February, and the ANC numbers ready to vote with the opposition was a key factor towards Zuma’s resignation from the Union Buildings on Valentine’s Day.

President’s End: While Zuma did resign, Parliament had a plan anyway

After Thursday’s postponement of the ATM no-confidence motion, Deputy State Security Minister Zizi Kodwa said, “The ANC, we are ready for the motion. And even if you bring it back on the 25th of December, we are ready.” 

DA leader John Steenhuisen agreed. “We came to the house prepared. And we had hoped our abstinence would make the president grow stronger.” 

While other opposition parties followed suit, EFF Chief Whip Floyd Shivambu bucked the trend by urging that when the programming committee meets on this motion, what it “should discuss are the logistics of a secret ballot”. 

Thursday’s postponement of the ATM no-confidence motion pending a court review in February 2021 comes against the backdrop of South Africa’s fractured body politic – and it’s just round one. DM

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