United Democratic Movement v Speaker of the National Assembly and Others - read full judgement

2017-06-22 13:19
Constitutional court. (News24)

Constitutional court. (News24)

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ANALYSIS: Here's what the ConCourt secret ballot ruling means...

2017-06-22 11:42

The Constitutional Court has ruled that the decision of a secret ballot must go back to the Speaker. Here's what that means...WATCH

Introduction

[1]  South Africa is a constitutional democracy – a government of the people, by the people and for the people through the instrumentality of the Constitution.  It is a system of governance that “we the people” consciously and purposefully opted for to create a truly free, just and united nation. Central to this vision is the improvement of the quality of life of all citizens and the optimisation of the potential of each through good governance.

[2]  Since constitutions and good governance do not self-actualise, governance structures had to be created to breathe life into our collective aspirations. Hence the existence of the legislative, executive and judicial arms of the State. They each have specific roles to play and are enjoined to inter-relate as foreshadowed by the following principle that guided our constitution-making process:

“There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”

[3]  Knowing that it is not practical for all fifty five million of us to assume governance responsibilities and function effectively in these three arms of the State and its organs, “we the people” designated messengers or servants to run our constitutional errands for the common good of us all.  These errands can only be run successfully by people who are unwaveringly loyal to the core constitutional values of accountability, responsiveness and openness.  And this would explain why all have to swear obedience to the Constitution before the assumption of office.

Essential context

Unelected servants of the people serve in the Judiciary that comprises Judges and Magistrates. Judges are selected by a constitutional body which comprises Members of Parliament from the ruling and opposition parties, a few Judges, a Cabinet Member, a few legal practitioners, a university law teacher and the President’s appointees.

[4]  Of the candidates who prove to be fit and proper for a judicial vacancy at the level applied for, one is then appointed by the President. And like all other accountable servants of the people, their under-performance or sanctionable conduct could result in their removal from office through an impeachment process if the Judiciary, Parliament and the President so decide. 

[5] The people’s representatives in Parliament are chosen through an electoral process. Each citizen qualified to vote may participate in that process that is designed to deliver free and fair elections.  Those who stand for public office and are elected  must attend the first sitting of the National Assembly. It is at that first sitting that at least three things over which the Judiciary presides must happen. First, Members of the Assembly must be affirmed or sworn in. Second, the Speaker of the Assembly must be elected by Members. Third, Members of the Assembly must elect the President of the Republic. Meaning, two arms of the State, the Judiciary and Parliament, each has a different but critical role to play in the process of electing the Head of State and Head of the Executive after general elections. Thereafter the President must be sworn in.

And that oath comes with serious obligations. 

[6] The President is an indispensable actor in the proper governance of our Republic and bears important constitutional responsibilities. To enable him or her to discharge these obligations, he or she has a fairly free hand in assembling the service delivery team – another set of servants comprising the Deputy President and a number of Ministers required to exercise the executive authority of the Republic. As many Deputy Ministers as are deemed necessary may also be appointed. Like Cabinet Ministers, they may be dismissed. 

[7] Public office, in any of the three arms, comes with a lot of power. That power comes with responsibilities whose magnitude ordinarily determines the allocation of resources for the performance of public functions.  The powers and resources assigned to each of these arms do not belong to the public office-bearers who occupy positions of high authority therein. They are therefore not to be used for the advancement of personal or sectarian interests. Amandla awethu, mannda ndiashu, maatla ke a rona or matimba ya hina (power belongs to us) and mayibuye iAfrika (restore Africa and its wealth) are much more than mere excitement generating slogans. They convey a very profound reality that State power, the land and its wealth all belong to “we the people”, united in our diversity. These servants are supposed to exercise the power and control these enormous resources at the beck and call of the people. Since State power and resources are for our common good, checks and balances to ensure accountability enjoy pre eminence in our governance system.

[8] This is all designed to ensure that the trappings or prestige of high office do not defocus or derail the repositories of the people’s power from their core mandate or errand.  For this reason, public office-bearers, in all arms of the State, must regularly explain how they have lived up to the promises that inhere in the offices they occupy.  And the objective is to arrest or address underperformance and abuse of public power and resources.  Since this matter is essentially about executive accountability, that is where the focus will be.

[9] Accountability, responsiveness and openness  enjoin the President, Deputy President, Ministers and Deputy Ministers to report fully and regularly to Parliament on the execution of their obligations. After all, Parliament “is elected to represent the people and to ensure government by the people under the Constitution”. 

[10] It thus falls on Parliament to oversee the performance of the President and the rest of Cabinet and hold them accountable for the use of State power and the resources entrusted to them. And sight must never be lost that “all constitutional obligations must be performed diligently and without delay”. When all the regular checks and balances seem to be ineffective or a serious accountability breach is thought to have occurred, then the citizens’ best interests could at times demand a resort to the ultimate accountability-ensuring mechanisms. Those measures range from being voted out of office by the electorate  to removal by Parliament through a motion of no confidence  or impeachment. These are crucial accountability-enhancing instruments that forever remind the President and Cabinet of the worst repercussions that could be visited upon them, for a perceived or actual mismanagement of the people’s best interests.

[11] Whether that time has come and how exactly to employ any of these instruments is the judgement call of the same Parliament that elected the President and to which he or she accounts. Some Parliamentarians believe that that time has come and have tabled a motion of no confidence in the President. They have themselves invited this Court to get involved and clarify the nature and extent of Parliament’s power. Rightly so, because “[e]veryone has the right to have a dispute that can be resolved by the application of law decided in a fair public hearing before a court”. 

[12] Implicit in this application is a deep-seated concern about just how effective Parliament’s constitutionally-prescribed accountability-enforcing mechanisms are. Do they ensure that there is enforcement of consequences for failure to honour core constitutional obligations or is it easy to escape consequences by reason of the inefficacy of mechanisms? And does the Constitution read with the Rules of the National Assembly give the Speaker the power to prescribe voting by secret ballot in a motion of no confidence in the President?

Background

[13] What reportedly triggered the tabling of a motion of no confidence in the President, is that on 31 March 2017, invoking his constitutional powers, the President dismissed the Finance Minister, Mr Pravin Gordhan, and his Deputy, Mr Mcebisi Jonas. Very soon after their dismissal, our economy was downgraded to a sub-investment grade otherwise known as “junk status”.

[14] And it was largely because of the economic downgrade that three of the political parties represented in the National Assembly, the United Democratic Movement (UDM), the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) asked the Speaker of the National Assembly to schedule a motion of no confidence in the President. She agreed and scheduled it for 18 April 2017.

[15] On 6 April 2017 the UDM wrote a letter to the Speaker.  She was asked to prescribe a secret ballot as the voting procedure for the scheduled motion of no confidence in the President. In substantiation, the UDM cited what it termed the obvious importance of the matter, the public interest imperative that a truly democratic outcome be guaranteed and the high likelihood that the vote would otherwise be tainted by the perceived fear of adverse and career limiting consequences, instead of being the free will of Members. The oath or affirmation taken by Members and considerations of accountability were added in support of a secret ballot as the preferred voting procedure.  While admitting that the Rules of the National Assembly do not make express provision for a secret ballot in that motion, the UDM contended that some direction could be found in sections 57 and 86(2) of the Constitution, read with item 6(a), Part A of Schedule 3 to the Constitution and rule 2 of the Rules of the National Assembly.

[16] The UDM argued that because none of these legal instruments prohibits a secret ballot, cumulatively they offer sufficient guidance for voting in secret. It contended that Tlouamma, a decision of the High Court in the Western Cape, was distinguishable.  The Court in this case had held that there was no implied or express constitutional requirement for voting by secret ballot on a motion of no confidence in the President.  It had then dismissed an application for an order to compel the National 

Assembly to vote on a motion of no confidence by secret ballot. The UDM reiterated that the public interest dictated that the vote of no confidence be conducted by a secret ballot.

[17] In response, the Speaker said voting procedures in the Assembly are determined by the Constitution and the Rules of the National Assembly and that none of them provides for a vote on a motion of no confidence to be conducted by a secret ballot. She also placed reliance on Tlouamma.

[18] In conclusion, the Speaker said that she had no authority in law or in terms of the Rules to determine that voting on that motion be conducted by secret ballot.  Also, she was entrusted with the responsibility to ensure that the House is at all times able to perform its constitutional functions in strict compliance with the Constitution, the Rules and Orders of the National Assembly.  For these reasons, she concluded that the UDM’s request could not be acceded to.

[19] Aggrieved by that response, the UDM, supported by some of the political parties represented in the National Assembly  and friends of the court,  approached this Court to determine whether the Constitution and the Rules of the National Assembly require or permit or prohibit the Speaker to direct that a vote on a motion of no confidence in the President be conducted by secret ballot. It seeks an order in the following terms:

“1 It is directed that the matter is to be dealt with as an urgent application and the applicant’s non-compliance with the ordinary rules for service and time periods is condoned.
2 It is declared that this Court has exclusive jurisdiction to determine the application, alternatively the applicant is granted direct access to this Court.
3 It is declared that:
3.1 The Constitution requires that motions of no confidence in terms of section 102 of the Constitution must be decided by secret ballot;
3.2 Alternatively to paragraph 3.1, it is declared that the Constitution permits motions of no confidence in terms of section 102 of the Constitution to be decided by secret ballot.
4 It is declared that:
4.1 The National Assembly Rules permit motions of no confidence in terms of section 102 of the Constitution to be decided by secret ballot;
4.2 Alternatively to paragraph 4.1, Rules 102 to 104 of the National Assembly Rules are unconstitutional and invalid to the extent that they preclude secret ballots being used for motions of no confidence.
5 The decision of the Speaker dated 6 April 2017 to refuse to allow the no confidence motions to be decided by secret ballot is reviewed and set aside and declared unconstitutional and invalid.
6 The Speaker is directed to make all the necessary arrangements to ensure that the motion of no confidence currently scheduled for 18 April 2017 is decided by secret ballot, including designating a new date for the motion to be debated and voted on no later than 25 April 2017.
7 The costs of this application are to be paid by the Speaker, jointly and severally with any other party opposing the relief sought.”

[20] It is now common cause among the parties that this application is no longer immediately urgent.

Jurisdiction

[21] The jurisdiction of this Court is sought to be established on two alternative grounds – direct access and exclusive jurisdiction.

[22] Section 167(6) of the Constitution provides for direct access to this Court in the following terms:

“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—
(a)to bring a matter directly to the Constitutional Court; or
(b)to appeal directly to the Constitutional Court from any other court.”

[23] The requirements for leave to bring an application or an appeal directly to this Court are fundamentally similar.  For this reason, when in the case of a direct appeal the interests of justice requirement would be satisfied for purposes of granting leave when certain factors exist, similar factors ought to redound to the success of an application for direct access.   But direct access or direct appeal is certainly not available for the asking.  Proof of exceptional circumstances, in the form of sufficient urgency or public importance and proof of prejudice to the public interest or the ends of justice and good governance, must demonstrably be established. 

[24] In Mazibuko  this Court was seized with a dispute relating to a motion of no confidence in the President.  Some of the issues to be resolved were: (a) whether the Speaker of the National Assembly had the power to schedule a motion of no confidence on his own authority; (b) whether the Rules were inconsistent with the Constitution to the extent that they did not provide for motions of no confidence in the President, as envisaged in section 102(2); and (c) whether Parliament had failed to fulfil a constitutional obligation in terms of section 167(4)(e) of the Constitution. 

[25] The application was brought in the form of a direct appeal from the High Court to this Court.  In addressing the issues, this Court had regard to whether the interests of justice require that leave be granted and to the great significance of a motion of no confidence in our constitutional democracy.  It also took into account that when and how to vindicate the power to initiate, debate and vote on a motion of no confidence under section 102 is an issue that deserves the attention of this Court.  The primary purpose of this motion, which is to ensure that the President and the national Executive are held accountable, was also taken into account to undergird the proposition that the matter would in all likelihood end up in this Court. 

[26] All of the above led to the conclusion that a direct appeal had to be granted.  As for the application for an order declaring that this Court has exclusive jurisdiction, the majority said:

“Given the outcome of the direct access application, we expressly refrain from deciding whether the requirements of section 102(2) create an obligation on the assembly within the meaning of section 167(4)(e). Resolving that dispute must wait for another day.” 

[27] We would do well to leave the resolution of the question whether this Court has exclusive jurisdiction in this matter for another day.  Here too, we embrace and reiterate the observations relating to the importance of a motion of no confidence in our constitutional democracy, its primary objective as an effective consequence enforcement tool and the likelihood of the dispute ending up in this Court even if we were to direct that it be heard by the High Court first.

[28] A motion of no confidence in the Head of State and Head of the Executive is a very important matter.  Good governance and public interest could at times haemorrhage quite profusely if that motion were to be left lingering on for a considerable period of time.  It deserves to be prioritised for attention within a reasonable time. The relative urgency of the guidance needed by Parliament from this Court is also an important factor to take into account. Consistent with the approach in Mazibuko in relation to an application for direct appeal, we too find it convenient to resolve the jurisdictional issue on the basis of direct access. Based on these factors, it is in the interests of justice to grant direct access.

The nature and purpose of a motion of no confidence

[29] The proper approach is one guided by this Court’s jurisprudence on constitutional interpretation.  In Hyundai we said:

“The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance.  As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights.  This spirit of transition and transformation characterises the constitutional enterprise as a whole.” 

[30] In Matatiele, we also made the following observations in relation to the correct approach to adopt in construing our Constitution:

“Our Constitution embodies the basic and fundamental objectives of our constitutional democracy.  Like the German Constitution, it ‘has an inner unity, and the meaning of any one part is linked to that of other provisions.  Taken as a unit [our] Constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate.’  Individual provisions of the Constitution cannot therefore be considered and construed in isolation.  They must be construed in a manner that is compatible with those basic and fundamental principles of our democracy.  Constitutional provisions must be construed purposively and in the light of the Constitution as a whole.” 

[31] And this is the approach to be adopted in pursuit of the correct answer to the issues raised in this matter.  The Preamble to our Constitution is a characteristically terse but profound recordal of where we come from, what aspirations we espouse and how we seek to realise them.  Our public representatives are thus required never to forget the role of this vision as both the vehicle and directional points desperately needed for the successful navigation of the way towards the fulfilment of their constitutional obligations.  Context, purpose, our values as well as the vision or spirit of transitioning from division, exclusion and neglect to a transformed, united and inclusive nation, led by accountable and responsive public office-bearers, must always guide us to the correct meaning of the provisions under consideration.  Our entire constitutional enterprise would be best served by an approach to the provisions of our Constitution that recognises that they are inseparably interconnected.  These provisions must thus be construed purposively and consistently with the entire Constitution.

[32] Although a motion of no confidence may be invoked in instances that are unrelated to the purpose of holding the President to account,  it is a potent tool towards the achievement of that purpose.  In that context, it is inextricably connected to the foundational values of accountability and responsiveness to the needs of the people.  It is a mechanism at the disposal of the National Assembly to resort to, whenever necessary, for the enhancement of the effectiveness and efficiency of its constitutional obligation to hold the Executive accountable and oversee the performance of its constitutional duties.

[33] And accountability is necessitated by the reality that constitutional office bearers occupy their positions of authority on behalf of and for the common good of all the people.  It is the people who put them there, directly or indirectly, and they, therefore, have to account for the way they serve them.

[34] A motion of no confidence therefore exists to strengthen regular and less “fatal” accountability and oversight mechanisms.  To understand how a motion of no confidence in the President enhances and fits into the broader accountability scheme, it is necessary to highlight some of the constitutional accountability provisions that apply to the Executive.

[35] Section 92 of the Constitution demands accountability from the Executive in these terms:

“Accountability and responsibilities
(1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.
(2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.
(3) Members of the Cabinet must––
(a) act in accordance with the Constitution; and

(b) provide Parliament with full and regular reports concerning matters under their control.”

And section 93(2) of the Constitution provides:

“Deputy Ministers appointed in terms of subsection (1)(b) are accountable to Parliament for the exercise of their powers and the performance of their functions.”

[36] The President, Deputy President, Ministers and their Deputies are thus enjoined by the supreme law of the land to be “accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions”.  Not only are they responsible for the proper exercise of the powers and carrying out of the functions assigned to the Executive but they are also required to act in line with the Constitution.  Additionally, they are obliged to “provide Parliament with full and regular reports concerning matters under their control”.

[37] In anticipation of a President and this constitutionally envisaged team’s possible remissness in the execution of their constitutional mandate, provision was made to minimise or address that possibility.  Those who represent the people in Parliament have thus been given the constitutional responsibility of ensuring that Members of the Executive honour their obligations to the people.  Parliament that elects the President and of which the Deputy President, Ministers and their Deputies are Members,  not only passes legislation but also bears the added and crucial responsibility of “scrutinising and overseeing executive action”. 

[38] Members of Parliament have to ensure that the will or interests of the people find expression through what the State and its organs do.  This is so because Parliament “is elected to represent the people and to ensure government by the people under the Constitution”.   This it seeks to achieve by, among other things, passing legislation to facilitate quality service delivery to the people, appropriating budgets for discharging constitutional obligations and holding the Executive and organs of State accountable for the execution of their constitutional responsibilities.

[39] Parliament’s scrutiny and oversight role blends well with the obligations imposed on the Executive by section 92.  It is provided for in section 55 of the Constitution:

“Powers of National Assembly 
. . .
(2) The National Assembly must provide for mechanisms––
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of––
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.”

[40] The National Assembly indeed has the obligation to hold Members of the Executive accountable, put effective mechanisms in place to achieve that objective and maintain oversight of their exercise of executive authority.  There are parliamentary oversight and accountability mechanisms that are sufficiently notorious to be taken judicial notice of.  Some of them are calling on Ministers to: regularly account to Portfolio Committees and ad hoc Committees; and avail themselves to respond to parliamentary questions as well as other question and answer sessions during a National Assembly sitting.  It is also through the State of the Nation Address, Budget Speeches and question and answer sessions that the President and the rest of the Executive are held to account.

[41] These accountability and oversight mechanisms, are the regular or normal ones.  There may come a time when these measures are not or appear not to be effective.  That would be when the President and his or her team have, in the eyes of the elected representatives of the people to whom they are constitutionally obliged to account, disturbingly failed to fulfil their obligations.  In other words, that stage would be reached where their apparent under-performance or disregard for their constitutional obligations is viewed, by elected public representatives, as so concerning that serious or terminal consequences are thought to be most appropriate.  And that takes the form of removal from office.

[42] The Constitution provides for two processes in terms of which the President may be removed from office.  First, impeachment, which applies where there is a serious violation of the Constitution or the law, serious misconduct or an inability to perform the functions of the office.   Another related terminal consequence or supreme accountability tool, in-between general elections, is a motion of no confidence for which the Constitution provides as follows:

“102. Motions of no confidence
(1) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.”

[43] A motion of no confidence constitutes a threat of the ultimate sanction the National Assembly can impose on the President and Cabinet should they fail or be perceived to have failed to carry out their constitutional obligations.  It is one of the most effective accountability or consequence-enforcement tools designed to continuously remind the President and Cabinet of what could happen should regular mechanisms prove or appear to be ineffective.  This measure would ordinarily be resorted to when the people’s representatives have, in a manner of speaking, virtually given up on the President or Cabinet.  It constitutes one of the severest political consequences imaginable – a sword that hangs over the head of the President to force him or her to always do the right thing.  But, that threat will remain virtually inconsequential in the absence of an effective operationalising mechanism to give it the fatal bite, whenever necessary.

[44] It was with this appreciation of the invaluable role of a motion of no confidence in mind and the necessity for its efficacy that the following observations were made in Mazibuko:

“A motion of no confidence in the President is a vital tool to advance our democratic hygiene.  It affords the Assembly a vital power and duty to scrutinise and oversee executive action. . . .  The ever present possibility of a motion of no confidence against the President and the Cabinet is meant to keep the President accountable to the Assembly which elects her or him.” 

[45] A motion of no confidence is, in some respects, potentially more devastating than impeachment.  It does not necessarily require any serious wrongdoing, though this is implied.  It may be passed by an

[1]  ordinary, as opposed to a two-thirds majority of Members of the National Assembly.  Unlike an impeachment that targets only the President, a motion of no confidence does not spare the Deputy President, Ministers and Deputy Ministers of adverse consequences.  And the Constitution does not say when or on what grounds it would be fitting to seek refuge in a motion of no confidence.

[2]  As to when and why, a point could conceivably be reached where serious fault-lines in the area of accountability, good governance and objective suitability for the highest office have since become apparent.  Those concerns might not necessarily rise to the level of grounds required for impeachment.  But, the lingering expectation of the President delivering on the constitutional mandate entrusted to him or her might have become increasingly dim.

[3]  In the final analysis, the mechanism of a motion of no confidence is all about ensuring that our constitutional project is well managed; is not imperilled; the best interests of the nation enjoy priority in whatever important step is taken; and our nation is governed only by those deserving of governance responsibilities.  To determine, through a motion of no confidence, the continued suitability for office of those who govern, is a crucial consequence-management or good-governance issue.  This is so because the needs of the people must never be allowed to be neglected without appropriate and most effective consequences.  So, a motion of no confidence is fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive’s performance.

[48] When the stage is reached or a firm view is formed, by some Members of the National Assembly, that the possibility of removing the President or Cabinet from office through a motion of no confidence be explored, would it be constitutionally permissible for the Speaker, on behalf of the National Assembly, to prescribe a secret ballot as the voting procedure? On what bases may this Court conclude that the Speaker does have the power to order voting by secret ballot?

Does the Speaker have the power to prescribe a secret ballot?

[49] The Speaker was asked by some Members of the Assembly to make a determination that voting in the motion of no confidence in the President be conducted by secret ballot. She holds the view that neither the Constitution nor any rule gives her that power.  She cites Tlouamma as a further impediment to the option of a secret ballot. We are thus called upon to determine whether the Constitution and Rules of the National Assembly require, permit or prohibit that voting in a motion of no confidence in the President be by secret ballot.

[50] Section 102(2) provides that the National Assembly is to take a decision in a motion of no confidence through a vote.  Neither the sections nor the rules relied on by the parties, to support the contention that a secret ballot is required, provide expressly for any voting procedure in a motion of no confidence. A reflection on some constitutional provisions that provide for voting in line with the interpretative guidelines laid down by Hyundai and Matatiele is thus necessary. 

[51] Section 19(3)(a) of the Constitution provides that “[e]very adult citizen has the right . . . to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret”. Our Constitution has chosen a secret ballot as the voting procedure for the general elections.

[52] The President may, in terms of section 50(1) of the Constitution, dissolve the National Assembly if it has through a majority vote of its Members adopted a resolution for its dissolution. No provision is made for the voting procedure.

Read the rest of the judgement.


Read more on:    mogoeng ­mogoeng  |  constitutional court  |  secret ballot

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