| UDM v Speaker of the National Assembly | |
|---|---|
 | |
| Court | Constitutional Court of South Africa |
| Full case name | United Democratic Movement v Speaker of the National Assembly and Others |
| Decided | 22 June 2017 (2017-06-22) |
| Docket nos. | CCT 89/17 |
| Citations | [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) |
| Court membership | |
| Judges sitting | Mogoeng CJ, Nkabinde ADJC, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Zondo J, Mojapelo AJ and Pretorius AJ |
| Case opinions | |
| The Speaker of the National Assembly has the constitutional power to prescribe a secret ballot in a parliamentary motion of no confidence in the President of the Republic. | |
| Decision by | Mogoeng CJ (unanimous) |
| Keywords | |
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United Democratic Movement v Speaker of the National Assembly and Others is a 2017 decision of the Constitutional Court of South Africa on the purpose and procedure of parliamentary motions of no confidence in the President of the Republic of South Africa. In a unanimous judgment written by Chief Justice Mogoeng Mogoeng, the court held that the Speaker of the National Assembly was empowered to prescribe a secret ballot in votes of no confidence.
Background and application
In the early hours of 31 March 2017, President Jacob Zuma announced a major reshuffle of his cabinet. Among those fired were respected Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas. Coming amid broader allegations of state capture in Zuma's administration, the cabinet reshuffle was met with an adverse reaction from the markets and from much of the public, including in the so-called Zuma Must Fall protests.
In this context, three opposition parties – the United Democratic Movement (UDM), the Democratic Alliance, and the Economic Freedom Fighters – approached the Speaker of the National Assembly, Baleka Mbete, with a request to schedule a motion of no confidence in the President, as provided for in section 102 of the Constitution. The motion was scheduled for debate in the National Assembly on 18 April 2017. In the interim, the UDM wrote to the Speaker with the further request that the vote on the motion should be conducted by secret ballot. On 5 April, the Speaker refused, arguing that neither the Constitution nor the Rules of the National Assembly empowered her to order such a voting procedure in a motion of no confidence.
In response, the UDM applied for direct access to the Constitutional Court of South Africa, where it sought judicial review of the Speaker's decision. Four lobby groups were admitted as amici curiae, and all political parties represented in the National Assembly were joined to the proceedings. Counsel for the litigants included Dali Mpofu for the UDM, Tembeka Ngcukaitobi for the Economic Freedom Fighters, and Anton Katz for Inkatha Freedom Party. The matter was heard on 15 May 2017 and judgment was handed down on 22 June 2017.
Judgment
In a unanimous judgment written by Chief Justice Mogoeng Mogoeng, the Constitutional Court held that the Constitution does not provide for or require any express procedure for a vote of no confidence; either a secret ballot or an open ballot is permissible, at the discretion of the Speaker and in the public interest. The reason for this is section 57(1) of the Constitution, which grants the National Assembly the latitude to determine its own internal arrangements and rules "with due regard to representative and participatory democracy, accountability, transparency and public involvement". The court therefore set aside the Speaker's decision of 6 April, but it declined to prescribe a secret ballot; instead, it remitted the UDM's request for a secret ballot to the Speaker, who was to make a fresh determination in light of the ruling.
In the rest of its judgment, the court reflected on the purpose of motions of no confidence, which it construed as the "ultimate" means available to Parliament for exerting accountability over the executive. Given this purpose of accountability, the Speaker's choice among voting methods would be situation-dependent but should rationally include consideration inter alia of the competing imperatives of facilitating openness and transparency, on the one hand, and allowing Members of Parliament to exercise their vote "in accordance with conscience, without undue influence, intimidation, or fear of disapproval", on the other hand.
References
- "ANC rejects 'mischievous' calls lobbying MPs to support Zuma no confidence motion". Sowetan. 6 April 2017. Retrieved 19 January 2024.
- Vos, Pierre de (11 April 2017). "Speaker Baleka Mbete vs the Secret Ballot – what the law says". Daily Maverick. Retrieved 19 January 2024.
- Banda, Tinenenji (1 May 2018). "United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21". SAIPAR Case Review. 1 (2). ISSN 2522-686X.
- Slade, Bradley BV (29 March 2021). "Reviewing the Speaker's Decision: A Brief Synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)". Potchefstroom Electronic Law Journal. 24: 1–20. doi:10.17159/1727-3781/2021/v24i0a8111. hdl:10394/38749. ISSN 1727-3781.
- "Justices ask Dali Mpofu why Constitutional Court should order a secret ballot". Business Day. 15 May 2017. Retrieved 19 January 2024.
- "Members of Parliament are entitled to vote according to their conscience: EFF". Sunday Times. 15 May 2017. Retrieved 19 January 2024.
- "Constitutional Court judges ask tough questions of parties in secret ballot case". Business Day. 15 May 2017. Retrieved 19 January 2024.
- "Concourt: Speaker has the powers to prescribe secret ballot". The Mail & Guardian. 22 June 2017. Retrieved 19 January 2024.