Chief Justice Mogoeng Mogoeng has neatly kicked the secret ballot decision in the fifth vote of no confidence in President Jacob Zuma back to National Assembly Speaker Baleka Mbete.
Mogoeng has avoided what critics call a tendency to "judicial overreach" -- when the judiciary encroaches on the powers of another branch of government -- but affirmed that the speaker can decide that members of Parliament may vote secretly.
He affirmed the "power of the people" and cautioned that a decision on which ballot to use -- public or secret -- should not be used to exercise self or party interest.
"As in the case with general elections where a secret ballot is deemed necessary to enhance the freeness and fairness of the elections, so it is with the election of the President by the National Assembly. This allows members to exercise their vote freely and effectively, in accordance with the conscience of each, without undue influence, intimidation or fear of disapproval by others," his judgment reads.
Mbete wears two hats: she is both the chairperson of the governing ANC and the speaker of the National Assembly. The first role means she acts in the interests of the party while the speaker role means she is steward of the public.
As chairperson of the ANC, Mbete is duty-bound to protect President Jacob Zuma, who is best-served by an open vote as it means that ANC MP's are not likely to go against the party line, which is that it will never vote against its own president. While ANC Chief Whip at Parliament, Jackson Mthembu, is critical of Zuma, he is enforcing a strong party line on the ballot.
As speaker of Parliament, Mbete serves the national interest and must act in accordance with the power vested in her by the people, not the party.
While no audits have been done, there is a strong view amongst people who have been lobbying ANC MP's that a secret ballot would yield a less secure outcome for Zuma -- only 50 ANC MP's need to vote for the no confidence motion to swing the outcome despite the party's majority at Parliament.
It is all eyes on Mbete now as the nation waits on the edge to see which hat she will wear.