While the courts should not intrude on the "space reserved for the National Assembly", they should create the conditions for the legislative arm of the state to do its job.
According to Business Day on Tuesday, these were the arguments advanced by counsel arguing whether or not a motion of no confidence in President Jacob Zuma should be determined by a secret ballot in Parliament at the Constitutional Court on Monday.
The United Democratic Movement (UDM) brought the case after the Speaker of the National Assembly, Baleka Mbete denied a request by the DA to have the issue dealt with by secret ballot. Mbete reportedly said she did not have discretion to decide the issue.
According to Business Day on Tuesday, Advocate Geoff Budlender, arguing on behalf of the Council for the Advancement of the South African Constitution (Casac) said the case was about "terrain was such that Parliament could exercise its oversight function", and not judicial overreach.
Chief Justice Mogoeng Mogoeng reportedly asked whether an order telling Parliament what to do would amount to judicial overreach, or an intrusion into "the space reserved for the National Assembly".
Business Day reported that Justice Edwin Cameron asked if it would be enough if the Court left the discretion to the speaker.
But Budlender said this was not enough, and said the Court had to go further.
"This case can do A or B, an open or secret vote ... an open vote I submit would lead to a failure of the National Assembly's oversight role," he reportedly said.
Advocate Marumo Moerane, arguing on behalf of Parliament, said the Constitution allowed Parliament to make its own rules and the National Assembly had rejected the secret ballot.