Western Cape High Court reserves judgment in the matter between the National Assembly Speaker and African Transformation Movement on the Section 89 Enquiry

14 February 2023

The matter between the Speaker of the National Assembly(NA), Ms Nosiviwe Mapisa-Nqakula and the African Transformation Movement (ATM), where the ATM seeks to review and set aside the Speaker’s decision on the voting procedure for the report on the Section 89 inquiry, and the NA’s decision not to proceed with the inquiry, has been heard yesterday and today in the Western Cape High Court. Judgment is reserved.
 
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.
 
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. 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. The lawful exercise of her discretion affirms the functional independence of the National Assembly to invoke its powers under section 57 of the Constitution and decide on the appropriate voting procedure for this question.
 
In considering how the question would be voted on, the Speaker argued that she did not presuppose that there was a default position for either an open or secret ballot. She said she simply took an independent and impartial decision on how the particular motion was to be conducted on a clean slate, in light of all relevant considerations in the prevailing environment. She argued that she did not place any onus on the ATM to prove that the prevailing circumstances justified that a secret ballot procedure was warranted. Instead, she duly considered the reasons advanced by the ATM in their requests for a secret ballot to be adopted in her holistic assessment of which voting mechanism would be better in the circumstances.
 
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.
 
The ATM seeks a review and setting aside of the NA’s decision not to proceed with the section 89(1) inquiry; to substitute the Speaker’s decision with an order that the voting procedure is conducted by way of secret ballot.
 
The Speaker believes that no legal basis exists for the granting of such relief which was described in a similar context by the Constitutional Court in its UDM judgment as “radical and separation of powers-insensitive”.

Issued by Moloto Mothapo, Media Officer, Parliament, 14 February 2023