Cape Town - The Western Cape High Court on Monday heard arguments in the application by the African Transformation Movement (ATM) to review and set aside National Assembly Speaker Nosiviwe Mapisa-Nqakula’s decision to reject its request for a secret vote on the Section 89 independent panel report.
The legal counsels for Mapisa-Nqakula and ATM made their arguments before a full bench.
The ATM brought its urgent application after the National Assembly decided in December to vote against the report, which found President Cyril Ramaphosa had a case to answer about the Phala Phala scandal.
The decision had effectively put a stop to any possible process that may have led to an impeachment inquiry against Ramaphosa, who has since taken the report on review in the Constitutional Court.
Mapisa-Nqakula stood her ground when some opposition parties requested her to reconsider her decision amid threats against ANC MPs if they voted for the Phala Phala report.
In his court papers, ATM leader Vuyolwethu Zungula said the decision to reject his party’s request for a secret ballot should be declared unconstitutional and invalid.
Zungula said Mapisa-Nqakula applied an incorrect test when determining the voting procedure.
“In rejecting ATM’s request for a closed ballot and prescribing an open ballot procedure, the Speaker required that there be ‘exceptional circumstances' for her to ‘deviate from the principle of openness’.
“The Speaker is wrong because the principle of openness is not the default position, and therefore cannot be ‘deviated from’.
“There is also no onus on any member of the National Assembly to establish exceptional circumstances before a closed ballot procedure is adopted,” he said.
Zungula said the Speaker had adopted a course of action that stymied parliamentary accountability and protected the political interest of the political party of which she is a member.
The evidence placed before the Speaker made it clear that Members of the Assembly who belong to the ANC were threatened with disciplinary action if they did not toe the party line.
“The Speaker concluded that the political environment was not sufficiently toxic for a closed ballot procedure to be prescribed,” he said.
Zungula said the National Assembly proceedings on December 13 were irregular because they followed an unlawful course of action.
“The Speaker's decision to prescribe an open ballot procedure tainted the lawfulness of the proceedings and requires that Parliament reconsider the proceedings contemplated by the Rule 1291 of the impeachment rules.”
Zungula asked that the court not only to set aside Mapisa-Nqakula’s decision, but declare invalid the Parliamentary session, where the National Assembly decided to vote against the Section 89 report.
He asked that the court make a ruling that would order the National Assembly to decide on a secret ballot whether to proceed with impeachment proceedings.
But, Mapisa-Nqakula said the ATM’s application was seeking sweeping relief that would intrude into the authority of Parliament.
She said she was empowered by the parliamentary rules to exercise a discretion to determine voting procedure.
“My lawful exercise of this discretion affirms the functional independence of the National Assembly to invoke its powers under Section 5 of the Constitution and decide on the appropriate voting procedure,” she said in her court papers.
Mapisa-Nqakula also said she had carefully and impartially considered all relevant factors in the prevailing circumstances at the time.
“There was insufficient evidence before me to conclude that the allegation about these threats tipped the balance in favour of adopting a secret ballot mechanism for the National Assembly to vote on the question whether to proceed with the Section 89(1) enquiry.”
Mapisa-Nqakula added that it was regrettable that the ATM claimed without providing evidence that she determined the voting procedure in bad faith to determine a predetermined outcome.
“In the absence of any actual evidence of this kind of motive on my part, an inference of bad faith would only be justifiable if there were no other reasonable explanation for my decision which the ATM seeks to impugn,” she said.
The legal counsels for the ANC and the EFF, as interested parties, will make their arguments before the court on Tuesday.
Cape Times