ATM vs Speaker: Court reserves judgment in Phala Phala secret ballot challenge

The ATM sought the review and setting aside the Speaker’s decision on the voting procedure for the report on the Section 89 inquiry, and the National Assembly’s decision not to proceed with the inquiry. The party is also asking the court to set aside the National Assembly's proceedings of 13 December, where lawmakers voted against the adoption of the of the report, and for a declaratory order that such a vote must be by secret ballot.

The matter was in court on Monday and Tuesday.

“In her answering affidavit, the Speaker argues that the voting procedure adopted by the National Assembly was to decide whether to proceed with an inquiry into the impeachment of the President in terms of section 89(1) of the Constitution. The vote took place after the NA considered a report issued by an Independent Panel.

“The report by the Independent Panel, made a preliminary finding relating to the substantive notice of motion lodged by the ATM to initiate an inquiry into the impeachment of the President under section 89(1) of the Constitution,” said Parliament spokesperson Moloto Mothapo.

The ATM had repeatedly requested the Speaker to give effect to its strong preference that voting on the Section 89 Independent Panel’s report should be conducted by secret ballot. The ATM argues that the Speaker applied the incorrect test when determining the appropriate voting procedure after it made repeated requests for voting on the adoption of the report to be conducted via secret ballot.

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The Speaker rejected the request for a secret ballot, and the ATM approached the High Court to request a review of her decision.

“The Speaker, in arriving at her decision to decline the ATM’s request, was empowered by the rules of the National Assembly under section 57 of the Constitution to exercise discretion to determine how voting by the National Assembly would be conducted on the question of whether to proceed with the section 89(1) inquiry – that is, by open vote or secret ballot”, said Mothapo.

Mapisa-Nqakula said in considering how the vote would take place, she did presuppose that there was a default position for either an open or secret ballot and that she simply took an independent and impartial decision.

Mothapo adds: “Furthermore, the Speaker in her answering affidavit rejects the ATM’s regrettable and unfounded claim that she exercised her power to determine the voting procedure in bad faith to achieve a predetermined outcome. In the absence of any actual evidence of this kind of motive on her part, an inference of bad faith would only be justifiable if there were no other reasonable explanation for her decision which the ATM seeks to impugn.”