The Supreme Court of Appeal (SCA) has set aside former National Assembly speaker Thandi Modise’s decision that ATM’s proposed motion of no confidence in President Cyril Ramaphosa should not be held by secret ballot.
The SCA has ordered that the speaker, currently Nosiviwe Mapisa-Nqakula, make a “fresh decision” on the matter. The speaker must also pay ATM’s legal costs for two counsel.
The judgment, written by Judge Trevor Gorven, with judges Xola Petse, Caroline Nicholls, Anna Kgoele and John Smith concurring, was handed down on Thursday morning.
In March, acting Judge James Lekhuleni dismissed ATM’s application to the Western Cape High Court to review Modise’s decision that voting would be done by open ballot, finding Modise had considered all the circumstances in denying ATM’s request.
Lekhuleni found the party’s reasons for a secret ballot were “speculative, contrived and based on unsupported suppositions”. However, he ruled there was no duty on the party bringing the motion to prove that an open or secret ballot was preferable.
The matter will now be looked into by Mapisa-Nqakula after the SCA referred it back to her for her consideration.
In a judgment on Thursday the SCA said it upheld the decision of the Western Cape High Court to appeal the matter.
This was after Modise had on two occasions refused a secret ballot.
“On appeal, with the high court having given leave, the ATM contended that the decision of the Speaker offended the rationality principle and should have been reviewed and set aside on that basis. The aspect of this principle relied upon was that the Speaker had believed that, for her to allow the vote to proceed by way of a secret ballot, the ATM bore an onus to show the need for a secret ballot by producing evidence or reasons for that procedure to be adopted.
“The ATM submitted that since the Speaker had failed to appreciate ‘how she was to go about making her decision she could not properly and lawfully apply her mind to the merits’. In such circumstances, the correctness of the ultimate decision is irrelevant,” stated the SCA in its judgment.
“The high court found that there was no such onus to discharge. This was accepted by the Speaker for the purposes of the appeal. She contended, however, that the procedure she adopted arrived at the correct decision. That being the case, the procedural error was not a material one and her decision was not susceptible of review,” it said.
It said the onus on the party calling for a secret ballot was flawed. It said the Speaker did not use her discretion in taking the decision to refuse the secret ballot.
“The SCA thus upheld the appeal with costs and substituted a decision reviewing and setting aside the decision of the Speaker to refuse the request of ATM. The matter was referred back to the Speaker for a fresh decision,” said the court.