On Thursday 3 December 2020, the South African National Assembly is scheduled to entertain a vote of no confidence motion in the President. The motion was submitted some months ago by the African Transformation Movement (“ATM”) – a minority party in the National Assembly. It requested that the vote be done by secret ballot. The Speaker of the National Assembly, the upper house, refused. ATM demurred and has reportedly given the Speaker until close of business on Monday 30 November 2020 to reconsider her decision or face legal challenge.
Whether that legal challenge will come is anyone’s guess. Should it come, though, the very foundation of South Africa’s relatively nascent constitutional democracy is likely to be tested. And that’s a good thing.
South Africa has been here before, except on that occasion the Speaker asserted that she had no power to direct that a vote of no confidence in the President be done by secret ballot. She was mistaken. The Constitutional Court set her right and told her she does have a discretion so to direct. It armed her with a myriad factors that must be taken into account in the exercise of that discretion. In the end, the Speaker, on that occasion, relented and directed a vote by secret ballot.
The Constitutional Court judgment was in June 2017. The President narrowly survived the secret ballot no confidence vote in August 2017. Another vote of no confidence was scheduled for late February 2018. The President avoided that secret ballot judgment of his peers. He resigned on Valentine’s Day 2018.
Over 3 years later since the last no confidence vote, another President is facing the same hurdle and the Speaker’s decision looks likely to be challenged – again. This time, though, the applicable principles are clear.
Given that money has increasingly taken centre-stage during this President’s term in office, and at least two Members from the opposition benches have been outed as having received money from the President’s 2017 campaign funds the records of which remain sealed by order of court, it seems unlikely that the Speaker has applied her mind fully to the dangers that her decision to refuse a secret ballot poses to a conscience-laden exercise of each Member’s vote in that no confidence vote.
The Constitutional Court’s observations in paragraphs 81 and 82 in UDM v The Speaker and Others (CCT 89/17)  ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017) [“the Secret Ballot Case] – regarding “money or oiled hands determining the voting outcome”, and the voting process degenerating into a “fear or money-inspired sham” – are particularly chilling, especially with the ever-looming spectre of the firmly sealed records of donations to this President’s 2017 election campaign in which records the names of many Members of Parliament – both those of his own party and those of opposition parties – could be featuring prominently, and likely to vote gratitude to the President for the largesse s/he may have received than conscience.
The stakes are high and should expose real (not imagined or rhetorical) fissures – if they ever genuinely exist between chameleon-esque politicians. In terms of s 102(2) of the South African Constitution, if the vote of no confidence in the President succeeds by a simple majority of 201 of the 400 Members of the National Assembly, the President and his entire cabinet (including deputy ministers) must resign. For that to happen, at least 33 ruling party Members must vote in favour of the motion and ALL opposition parties must also vote in favour.
Read the full Analysis here Deja Vu For Constitutional Democracy in South Africa