ATM president Vuyolwethu Zungula.
- The ATM was granted leave to appeal directly to the Supreme Court of Appeal.
- The party wanted to appeal the Western Cape High Court’s dismissal of its attempt to compel Thandi Modise to grant a secret ballot for a motion of no confidence in President Cyril Ramaphosa.
- Acting Judge James Lekhuleni found the case is of high public importance, and further clarity would strengthen democracy.
The ATM has been granted leave to appeal the Western Cape High Court’s ruling that dismissed its attempt to compel National Assembly Speaker Thandi Modise to grant a secret vote for a motion of no confidence in President Cyril Ramaphosa.
Acting Judge James Lekhuleni’s said the case raised a matter of public importance in dealing with how the executive conducted its affairs and how the speaker exercised her discretion in determining the voting procedure of a motion of no confidence in the president.
“It is axiomatic that a motion of no confidence in the head of state and head of the executive is an extremely important matter. If clarity could be reached on the subject, that would strengthen our constitutional democracy,” added Lekhuleni in Friday’s ruling.
He granted the ATM leave to appeal directly to the Supreme Court of Appeal.
The parties’ arguments were raised in papers, and considered in chambers.
In March, he dismissed the ATM’s application to review Modise’s decision that voting would be in the open, finding Modise had considered all the circumstances in denying the 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 ATM then brought an application for leave to appeal directly to the Supreme Court of Appeal.
Its heads of argument, the party stated its application for leave to appeal concerned only one issue: “Was the speaker’s decision to decline to order a secret ballot lawful, bearing in mind, in particular, this court’s finding that the speaker’s conclusion on onus was ‘inaccurate and erroneous’.
“It is submitted that if in the process of making a decision a decision-maker applies an ‘inaccurate and erroneous’ position on the question of onus, then the decision is per se tainted by irregularity and must be declared unconstitutional and invalid.
“For a decision-maker to wrongly think that she needed to be persuaded one way or the other and that a default position existed is so fundamental an error of law that the decision is per se vitiated for that reason alone.”
The ATM argued this was the reason its appeal had strong prospects of success.
Modise’s heads of argument contended “the single ground of appeal that the applicant seeks to pursue has never once been pleaded by it”.
“Assuming that the applicant does not change its case again, this, without more, is sufficient that leave should be refused,” it read.
Modise added it was fatal to the ATM’s case that it failed to provide “any information that would fall within the ambit of ‘reasons’ that the speaker could consider” for having a secret vote.
President Cyril Ramaphosa.
She argued the threshold for an appeal to the Supreme Court of Appeal had not been reached.
The case is the latest installment in a saga that began early last year when ATM leader Vuyolwethu Zungula lodged a motion of no confidence in Ramaphosa with Modise.
Zungula also requested a secret ballot for the vote on the motion, which Modise denied.
In late November, the motion was scheduled for 3 December. Again, the ATM unsuccessfully petitioned Modise to have the motion voted on by secret ballot.
On the day the motion was to be heard, the party asked the Western Cape High Court to review Modise’s decision, and the motion was postponed.
The ATM argued a secret vote was necessary because some MPs allegedly were beneficiaries of CR17 funds and the situation in Parliament was as toxic as that in 2017 when then-speaker Baleka Mbete ordered a secret ballot for a vote of no confidence in corruption-accused former president Jacob Zuma.
Modise found the party did not provide any evidence to back up its assertions.