Vote of no confidence

10 Sep 2021 4:04 pm by Merilyn Kader

In African Transformation Movement v Speaker of the National Assembly and Others [2021] 2 All SA 757 (WCC), in a vote of no confidence against the President, decision whether to vote by open or secret ballot lay with the Speaker. The courts can only interfere if the Speaker did not apply her mind to her decision.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Constitutional and administrative law - Vote of no confidence against the President: The applicant in African Transformation Movement v Speaker of the National Assembly and Others [2021] 2 All SA 757 (WCC) sought to review and set aside a decision of the first respondent, the Speaker of the National Assembly, in declining the applicant’s request to hold voting by secret ballot in a motion of no confidence against the South African President.

Raising a preliminary point, the Speaker contended that the present court lacked jurisdiction to hear the application. It was argued that the Speaker’s mandate is constitutional, and that the decision not to hold a vote by secret ballot involved a constitutional obligation to allow members of Parliament to vote in a certain way. The contention, therefore, was that it was the CC, which had exclusive jurisdiction in the matter in terms of s 167(4)(e) of the Constitution.

Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case. The pleadings contain the legal basis under which the applicant has chosen to invoke the court’s competence. A determination of whether the present court had jurisdiction to consider the matter lay in a proper interpretation of ss 102(2) and 167(4)(e) of the Constitution. Section 102 deals with a vote of no confidence in the President by the National Assembly.

It is incumbent upon a party invoking the jurisdictional exclusivity in terms of s 167(4)(e) to establish that there was a failure by parliament to fulfil a constitutional obligation. The applicant’s cause of complaint related to the procedural path to the vote and did not involve the President’s constitutional obligations.

Similarly, s 102(2) does not clothe a member of Parliament with a constitutional obligation envisaged in s 167(4)(e) to perform a specific act or function that would trigger the CC’s exclusive jurisdiction. Instead, it confers power on the assembly to pass a motion of no confidence in the president if the majority of members support the motion. It was concluded that the present court had jurisdiction to grant orders in terms of s 102(2).

The court then turned to consider whether the Speaker’s decision was unlawful and fell to be reviewed and set aside. The decision whether to vote by open or secret ballot lay with the Speaker. The courts can only interfere if the Speaker did not apply her mind to her decision. The court found the Speaker’s decision to have been based on sound reasons. Finding the decision to have been unimpeachable, the court dismissed the application for review.

Merilyn Rowena Kader
Legal Editor at LexisNexis