17/05/2017 10:46 SAST | Updated 17/05/2017 10:46 SAST

In The Secret Ballot Case, The Issue Is Political Failure, Not Judicial Overreach

It is the executive and legislature who have ‘forced the hand’ of the judiciary by failing to exercise their duties as per the Constitution.

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South African chief Justice Mogoeng Mogoeng leads a session of the Constitutional Court, on March 17, 2017, in Johannesburg.

The basic choice presented to the Constitutional Court in the Secret Ballot case was between saying that the secret ballot was "permitted", "required", or "prohibited". It seems to me that there was a large degree of consensus in the court that it was permitted by the Constitution. The real issue then is whether the courts should take a further step and say that it is required – and so oblige the national assembly to have a secret ballot when the no confidence motion is re-tabled in parliament.

Accordingly, a separation of powers issue arose. On the one hand, the court has a duty to intervene in order to protect the Constitution. On the other, Section 57 of the Constitution essentially gives Parliament full authority to develop its own internal procedures.

The conversation in the court inevitably, therefore, focused amongst other issues on the latitude that should be given by the court to the Speaker of Parliament to develop those appropriate procedures.

In general, the Speaker and the parliament should be permitted to run their own shop, so to speak, including setting its own rules, provided those fall within the ambit and parameters set by the Constitution. Where they fail to do that, where there are gaps, and where they fail to act and so infringe the Constitution, then the courts have to step in. That is the core issue. Should the court step in and instruct Parliament how to run its business, in relation to this particular no confidence vote?

We have to recognise that the default principle is ordinarily one of transparency. There are two principles of accountability: one is the duty that parliament has to hold the president to account, and the other is the accountability relationship between the members of parliament and the public that elected them. That second principle of accountability ordinarily requires transparency because we have the right to see how MPs actually vote. That should be the starting point.

However, that principle may be subject to exceptions, and again, the core issue in this case is whether it would be appropriate to exercise a discretion and to depart from the normal principle because of the exceptional circumstances in this case, which includes the fact that there is evidence before the court that MPs may be subject to reprisal if they are openly voting against their leader.

One of the arguments that was put before the court was that the Speaker cannot be trusted to perform her duty impartially because she is conflicted, since she is the National Chairperson of the ANC, and therefore part of its leadership.

One of the arguments that was put before the court was that the Speaker cannot be trusted to perform her duty impartially because she is conflicted, since she is the National Chairperson of the ANC, and therefore part of its leadership. In recent years it is clear that Speaker Mbete has lost the trust of the house, at least as far as the opposition is concerned, and that she no longer has the legitimacy necessary to perform her role according to both the constitution and the rules of parliament.

Mbete should have resigned, or been compelled to resign, ages ago. Thus, once again, the fact that a material consideration in the case was the Speaker's impartiality is a failure of politics that requires the court to step in.

Counsel for the Speaker appeared to accept that there was nothing in the way of parliament holding a secret ballot – certainly, nothing in the Constitution that would prevent her from developing rules to enable a secret ballot if she determined that it was necessary and appropriate.

So the question of overreach is really about whether the courts are willing to take what the advocate for the Council for the Advancement of the South African Constitution (Casac), Geoff Budlender SC, argued was a necessary further step – namely, to require parliament to impose a secret ballot.

The court's concern about separation of powers, which animated many of the exchanges between the court and the battery of counsel appearing before it on Monday, reflects the fact that in the political discourse at the moment there is a strand of thinking that is being advanced by people who have an ulterior motive, which is that the courts are "overreaching" – that they are overstepping the boundary between the different roles and functions assigned to each branch of government by the constitution.

The counterargument, which I prefer, is that it is not the courts that are overreaching, but the political branches of government - the legislature and the executive - and the political actors that surround them, including political parties - that are failing to handle political issues appropriately. This situation is leaving litigants with no choice but to turn to the courts to resolve matters.

Advocate Budlender made the point that it was the failure of the executive in the SASSA case, and indeed the failure of the legislature to exercise oversight over the executive, that meant that the courts had had to step in to ensure that millions of the most vulnerable people in South Africa continued to receive welfare payments in line with their rights to social security enshrined in the constitution.

That was not judicial overreach, Budlender argued, it was the court having to do what was necessary according to its duty under the Constitution, namely to protect the Constitution, and the rights and interests of the poorest members of our society, in order to make up for the failures of the other arms of the government.

So, the question for those who are trying to stoke up public opinion against the courts on the spurious and disingenuous basis that they are 'over-reaching' and standing in the way of 'transformation', is this: how transformational would it have been for 17 million people to have been denied their right to social security payments because of corruption and incompetence in government?

If their complaint was genuine, and not fuelled by their own self-enrichment interests that are being thwarted by the rule of law, then they should be celebrating the fact that the South African judiciary is independent enough to ensure that ordinary people are not victims of bad governance.