I'll start by quoting a recent statement made by Professor Pierre de Vos which unequivocally summarises issues around the 'secret ballot' case. He said: "Any half-decent lawyer would not have been surprised that the Constitutional Court ruled earlier this week that the Speaker of the National Assembly was mistaken when she claimed she did not have the power to order a secret ballot in a vote of no confidence against President Jacob Zuma. It is also not surprising that the court – demonstrating a slightly better understanding of the separation of powers doctrine than the public protector – declined to order the Speaker to conduct the vote of no confidence via secret ballot."
But what is most intriguing is that the political parties - the UDM Particularly and their representatives - were also not surprised by the outcome of the judgement. The reality is the judgement creates a vicious cycle and continued the moot battle to some extent between the ANC-led government and opposition parties and their use of the judiciary to effect checks and balances vested in the doctrine of separation of powers.
I say moot because after four weeks, that is when most of us will realise that the judgement has caused no significant legal effect (emphasis on legal) and that is when the cycle will begin because ultimately, after four weeks we (opposition parties and the rest of us, South Africans) will be back (politicians physically, South Africans on Twitter) at the constitutional court looking to strong arm the ruling party's chosen Speaker to take a decision favourable to the opposition but legally unenforceable.
The Chief Justice Mogoeng Mogoeng in the secret ballot case said that referring to rules of national assembly, that it empowered the speaker to make the determination and that it is her judgment call to make (in determining the appropriate voting procedure), so whether or not the Speaker of Parliament has said that she doesn't have the power to call for a secret ballot and that opposition parties succeed in correcting her, the reality is, it all goes back to her to decide as the law says it's her discretion to allow such.
The victory at the Constitutional Court is nothing but a moral victory, a grandstanding victory but as from that judgement day, going forward, the Speaker has been put in the spotlight as to whether or not she will a discretion that opposition parties will accept as honourable. The only thing anyone other than the Speaker can do is give the speaker reasons to change her mind; the Chief Justices utter along the lines in her remarks that the speaker must ensure her decision strengthens that tenant of our democracy, not undermine it and that ultimately her discretion must be one that strengthens our democracy.
But considering the ANC was voted by the majority of the people, perhaps what is a morally acceptable discretion is one which protects the people who voted the majority in power years back. Or one can argue that their views may have changed and that at this point, despite the ANC being voted in by the majority, perhaps the views might have changed and that parliament needs to go back to the people to find out what their stance is, e.g. through a referendum or an alternative. The point is whatever discretion she makes, what may be morally acceptable to the opposition might not be morally acceptable to the governing party, another conversation for another day.
For the next month, be on the lookout for a going back and forth judicial involvement battle between government and opposition parties with no significant legal change.
The speaker will surely be led more by her interest within her party and not necessarily what the people who voted for the DA and EFF in the recent municipal election may stand for. So maybe the light shining on her isn't bright enough to pressure her to make a favourable opposition decision and this may lead to the EFF bringing forth a court application to set aside her discretion because they would argue it is not rational (funny because it would be difficult to prove this) and the constitutional court may moderately tell them that they can't interfere with separation of powers and maybe agree that it is not rational but cannot make a declaratory order.
Then we go back to parliament to debate the decision and ultimately opposition parties will lose these battles through the sounds of ANC MPs shouting No and the Speaker confirming by saying "The Numbers have it", then decision and the Speaker's discretion pulling the "ANC is but a shadow of its former self" bug infested opposition's manifesto.
So for the next month, be on the lookout for a going back and forth judicial involvement battle between government and opposition parties with no significant legal change happening and to some extent an abuse of the court system and unnecessary saturation in the media over moot issues.Suggest a correction