When approached by the UDM to have the motion of no confidence in the president voted on by secret ballot, the speaker said that neither the Constitution nor the rules of the National Assembly allow her to authorise a vote by secret ballot. To this extent she was mistaken. The only real constraint that stood in her way was the Tlouamma decision.
Our interpretation of the relevant provisions of the Constitution and the rules makes it clear that the speaker does have the power to authorise a vote by a secret ballot in a motion of no-confidence proceedings against the president, in appropriate circumstances. The exercise of that power must be duly guided by the need to enable effective accountability, what is in the best interests of the people and obedience to the Constitution.
To the extent that Tlouamma might have been understood to have held that a secret ballot procedure is not at all constitutionally permissible, that understanding is incorrect. The speaker's decision was invalid and must be set aside.
This Court has been asked to direct the speaker "to make all the necessary arrangements to ensure that the motion of no confidence is decided by secret ballot, including designating a new date for the motion to be debated". But no legal basis exists for that radical and separation of powers-insensitive move. The Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot. She only lamented the perceived constitutional and regulatory reality that she lacked the power to authorise voting by secret ballot. Meaning, now that it has been explained that she has the power to do that which she is not averse to, she has the properly guided latitude to prescribe what she considers to be the appropriate voting procedure in the circumstances.
It may be necessary to add that her counsel reiterated during the hearing that the speaker is not really opposed to a secret ballot. The president's counsel also said that the Constitution neither requires nor prohibits but in reality permits a secret ballot. He went on to say a secret ballot does not necessarily hold adverse consequences for the president. It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the president conducted by secret ballot as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it. To order a secret ballot would trench separation of powers.
Whether the proceedings are to be by secret ballot is a power that rests firmly in the hands of the speaker, but exercisable subject to crucial factors that are appropriately seasoned with considerations of rationality. This court cannot assume that she will not act in line with the legal position and conditionalities as now clarified by this court. No legal or proper basis exists for that.
The speaker's decision that she lacks the constitutional power to prescribe a secret ballot in a motion of no confidence in the president is to be set aside. The UDM's prayer for the order that prescribes a secret ballot as the voting procedure will be referred back to the speaker to decide.
All parties to this application have recorded success against the speaker and the president. The unsuccessful parties are therefore to pay the costs of the applicant and all other participating respondents.
In the result the following order is made:
1. The United Democratic Movement is granted direct access.
2. It is declared that the speaker of the National Assembly has the constitutional power to prescribe that voting in a motion of no confidence in the President of the Republic of South Africa be conducted by secret ballot.
3. The Speaker's decision of 6 April 2017 that she does not have the power to prescribe that voting in the motion of no confidence in the president be conducted by secret ballot is set aside.
4. The United Democratic Movement's request for a motion of no confidence in the President to be decided by secret ballot is remitted to the speaker for her to make a fresh decision.
5. The speaker and the president must pay the costs of the United Democratic Movement, the Economic Freedom Fighters, the Inkatha Freedom Party and the Congress of the People, including costs of two counsel where applicable.