This is the view of the Speaker of the National Assembly‚ Baleka Mbete‚ who is opposing an application by the United Democratic Movement (UDM).
Last month‚ the UDM asked Mbete to table a motion of no confidence in President Jacob Zuma‚ following his controversial Cabinet reshuffle in March‚ which resulted in the removal of former finance minister Pravin Gordhan and his deputy Mcebisi Jonas.
In its request for the motion of no confidence to Mbete on April 3‚ the party said there had been reports of intimidation of MPs on the planned vote‚ hence its request for a secret ballot.
The Speaker refused‚ prompting the UDM to approach the Constitutional Court.
The party wants the court to declare that section 102 of the Constitution requires that motions of no confidence must be decided by secret ballot.
The section states that that if the National Assembly‚ by “a vote” supported by a majority of its members‚ passes a motion of no confidence in the President‚ the President and the other members of the Cabinet must resign.
Marumo Moerane SC‚ for Mbete‚ told the court that the main question dealt with by the court on Monday was on whether or not Section 102 (2) required the decision of the vote to be arrived at by way of secret ballot.
“For this court to have exclusive jurisdiction‚ one requires the identification of a particular duty which the National Assembly had not fulfilled‚” Moerane said.
Moerane said the allegation by the UDM was that the Constitutional Court had exclusive jurisdiction to decide that Parliament had failed to fulfil a constitutional obligation.
“The party has to identify that obligation that the parliament has failed to fulfil. In order for the applicant to succeed in this court‚ it must show that section 102 (2) imposes an obligation on the National Assembly to have a motion of no confidence in the president be decided by secret ballot.
“Our main submission is that the section does not impose such an obligation.”
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Moerane said the section in question only conferred the power on the National Assembly to pass a motion of no confidence if the motion was supported by the majority of members.
“The voting procedure for deliberating on such a motion is governed by the rules of the National Assembly. And the power of the National Assembly to make those rules is derived from section 57 of the Constitution.”
Moerane said Section 57 (1) provided for the National Assembly to determine and control its internal arrangements and procedures and make rules and orders concerning its business with regard to participatory democracy and public involvement.
“We submit that the National Assembly has taken a decision on whether or not a notice of motion of no confidence should or should not be done by secret ballot.”
Moerane said the essential question was whether the National Assembly was obliged by the Constitution to conduct a vote of no confidence by secret ballot.
“There is no such obligation flowing from the Constitution. The question of whether the National Assembly can hold a motion of no confidence by secret ballot depends on what the National Assembly has decided.”
Ishmael Semenya SC‚ for Zuma‚ also asked for the application to be dismissed.
He said the provision in the Constitution which related to a vote of no confidence in the president did not prescribe how that vote was to be cast.
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Semenya said the Constitution has elected to allocate rule-making on the vote to the legislative arm of government. He said in the exercise of that power‚ the National Assembly had made an election on which method voting should take place.
In reply‚ UDM counsel Dali Mpofu SC said from reading of the Constitution and National Assembly rules‚ it was clear that the rules contemplated a secret ballot or a method where one was not able to match a name and a vote.
Mpofu said the only reason why there was a secret ballot was because of the need to protect the vote‚ in this case the MPs.
The constitution provides for a secret ballot when a president is elected by Parliament.
“If there is a need to protect the voter‚ in a situation where you are installing a president … when you are removing the incumbent‚ it must follow that if that protection is called for in one instance‚ it is even more required in the other instance‚” Mpofu said.
He said in the election of the president‚ MPs were electing one person. If the motion of no confidence succeeded‚ it would mean the resignation of the president and his Cabinet.
“In the other situation‚ you are removing about 35 or 50 people. How can the protection be less in that situation.”
The court reserved judgment.