The secret ballot judgment: A power to be exercised and seasoned with rationality

27 June 2017

Introduction

As more executive decisions are challenged in the courts, rationality has become increasingly relevant.  In the recent secret ballot judgment, the Constitutional Court made it clear that the Speaker of the National Assembly has discretion when exercising her power to determine the procedure in a vote of no confidence.  However, that discretion is “exercisable subject to crucial factors that are appropriately seasoned with considerations of rationality”.

Factors relevant to the decision to determine the voting procedure

The Court set out various factors relevant to the Speaker’s decision when determining the most appropriate procedure for any no confidence vote.  It noted that the election of the President by the National Assembly is conducted by secret ballot to ensure that each Member of Parliament votes freely and effectively.  Essentially, the purpose of the secret ballot when electing a President should be kept in mind when initiating processes to remove a President.

The Court also recognised the importance of members of Parliament following their conscience when placing their vote.  Foundational to acting within the dictates of personal conscience is the pledge that each Member swears to South Africa, the Constitution and the law.  Here, the Court emphasised that

“. . . in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”

The Court acknowledged that following personal conscience does not necessarily mean that the vote should take place in secret.  Sometimes, members have a duty to present their views boldly in the best interests of the people they represent, as openness and transparency demand.  At the same time, the Speaker should have due regard to possible prejudicial consequences for members should their vote reflect a personal conscience that is in conflict with party policy.

The constitutional value of openness and transparency demanded by National Assembly practice in a democratic South Africa is another aspect that should be heeded in determining the voting procedure.  The Speaker should also take into consideration possible threats to a vote of no confidence in the form of dishonesty, bribe-taking and other illegitimate methods of fear and undue influence.

In light of these considerations, the Court made it clear that the voting procedure should be situation-specific.  In other words, the Speaker should apply her mind to the circumstances surrounding each vote to determine which procedure would most effectively ensure accountability and good governance.  In effect, the Court noted that the vote “must therefore have the effect of ensuring that the voting process is not a fear or money-inspired sham but a genuine motion for the effective enforcement of accountability.”

The relevance of rationality

Consideration of these factors by the Speaker essentially supports the core corollary of the decision in that “[t]here must always be a proper and rational basis for whatever choice the Speaker makes”.  On its most basic interpretation, rationality means that there must be a logical link between the decision and the purpose for which the decision was taken.  In this case, when the Speaker makes the decision in determining the procedure, there must be a clear connection between the power that is exercised in determining the voting procedure and the purpose for which a vote of no confidence against the President is initiated, with due regard for the surrounding circumstances as guided by the Court.  The decision must guarantee the effectiveness of regular mechanisms of accountability of the Executive to Parliament and ultimately “enhance the enforcement of accountability”.

Conclusion

The Court has laid out clear guidelines for the Speaker in exercising her power to determine the procedure in a vote of no confidence.  Moreover, it alluded to the circumstances relevant to this case which may tip the balance in favour of a secret ballot in what will be the eighth no confidence vote against President Jacob Zuma.  Should the Speaker go against what opposition parties have requested and choose to conduct the vote in the open, her decision is likely to face review on the grounds of irrationality.

Michelle Toxopeüs, Legal Researcher, HSF, 27 June 2017