The Supreme Court of Appeal has set aside the decision by the speaker of parliament to reject a request by the minority African Transformation Movement for a secret ballot on a motion of no confidence against President Cyril Ramaphosa.
In a unanimous judgment of a full bench, written by Judge Trevor Gorven, the appellate court ordered that the request be resubmitted to the speaker and reconsidered and awarded the ATM costs.
The case arose from a motion of no confidence the ATM filed in February last year, the first Ramaphosa faced in his three years as president, in contrast to the many weathered by his predecessor, Jacob Zuma.
The party subsequently approached then speaker Thandi Modise for a secret ballot, arguing that the prevailing political atmosphere was so toxic that governing party MPs would risk their careers, and possibly their lives, if they were to defy party instructions to support the motion.
Modise refused, and the ATM approached the Western Cape high court, after asking her to reconsider and getting the same answer.
In court, Modise argued that the default position is that voting is open, and that anybody who wishes to persuade her otherwise in a particular case bore an onus of proof to be met before the request could be granted.
High court judge James Lukheleni rejected this argument, but faulted that of the ATM that Modise had failed to apply her mind when weighing the request.
In May, he granted the ATM leave to appeal, saying it was in the public interest that clarity be reached in law on the contentious issue of whether votes of this nature should be open or secret.
For the purpose of the appeal, Modise accepted the high court’s view that there was no onus on a party requesting a secret ballot to make out a case for such.
This left one, narrow issue for the appellate court to decide, namely whether the decision Modise took could be considered rational given her misunderstanding, at the time, of what it required.
“It was agreed by all that the matter is foursquare a rationality review,” Gorven said.
Anton Katz SC, for the ATM, had argued that if Modise was wrong in law, her decision on the facts of the matter deserved further scrutiny as she may not have approached it in the right frame of mind.
“The speaker’s decision to reject the request could, as a matter of law, not be regarded as having been made rationally once she took, in the words of the honourable court, ‘the inaccurate and erroneous’ view concerning the issue of onus.”
Counsel for the speaker, Kameel Premhid, countered that, even if there may have been an error of law, it was not material to the decision she reached.
The appellate court accepted that in a rationality review, the incorrect procedure must be material to the decision arrived at, for it to be overturned.
Put differently, if the route taken to determine the facts on which the decision rests is incorrect, irrationality will follow. This was so because the power to take a decision was not exercised if the person who took it misunderstood the nature of the discretion they enjoyed.
The court, therefore, considered the reasons Modise set out, on three separate occasions, for her decision. At each of those, she submitted that the ATM had failed to provide her with concrete proof or cogent, rather than “speculative” reasons, as to why a secret ballot was required.
From this, Gorven said, it was clear that she did not properly understand her discretion to whether, in this particular instance, a secret ballot would allow MPs to exercise their oversight duties more effectively.
“She asked the wrong question,” he concluded.
“All of this demonstrates that the decision of the speaker was vitiated by irrationality.”
The request will now have to serve before the new speaker of parliament, Nosiviwe Mapisa-Nqakula.
Although the ATM has only two seats in the National Assembly, its court victory could have a political impact disproportionate to its size.
It has links to the governing party’s so-called radical economic transformation faction, led by suspended ANC secretary general Ace Magashule, which is likely to seek to block Ramaphosa’s road to re-election as ANC president at the party’s elective conference next year.
The ATM had tabled its motion on the grounds, among others, that Ramaphosa had presided over the collapse of state-owned entities and falsely promised an end to electricity load-shedding.