The party last month asked for National Assembly Speaker Baleka Mbete to table a motion of no confidence in President Jacob Zuma‚ following his controversial Cabinet reshuffling in March‚ which resulted in the removal of former finance minister Pravin Gordhan and his deputy Mcebisi Jonas.
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In its request for the motion of no confidence to Speaker Baleka Mbete on April 3‚ the party said there had been reports of intimidation of MPs on the planned vote.
When the Speaker refused to order that the motion of no confidence vote be conducted through a secret ballot‚ the UDM approached the Constitutional Court to compel her to do so.
In its application‚ the UDM wants the court to declare that the Constitution requires that motions of no confidence in terms of Section 102 of the Constitution must be decided by secret ballot.
The section states 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 other members of executive must resign.
The judges of the court expressed concern about the judiciary being seen to intrude into the domain of the legislative arm of government by telling the Speaker how to conduct her affairs.
However‚ political parties which support the secret ballot stated that the National Assembly’s oversight role over the executive should be served by way of a secret ballot.
UDM advocate Dali Mpofu SC said the only question which arose in this case was whether the meaning of an expression “a vote” in Section 102 meant whether a secret ballot was impliedly required‚ or permitted or prohibited.
Mpofu said the UDM would convince the court that a secret ballot was compulsory.
“This case is not about separation of powers‚ nor encroachment of the court in anything. If our interpretation of Section 102 is correct‚ this was always like that since 1996 when the Constitution was enacted.”
The judges pointed out to Mpofu that other sections in the Constitution; which dealt with the citizens’ right to vote and the appointment of the president‚ specifically mentioned that a vote should be done in secret. This was not the case with Section 102‚ they said.
They suggested that the drafters of the Constitution might have left the option on what form voting should take place on motions of no confidence to the legislature.
Advocate for the Economic Freedom Fighters‚ Tembeka Ngcukaitobi‚ said section 86 of the Constitution‚ which dealt with the appointment of the president by way of secret ballot‚ applied with equal force to Section 102 (2).
Ngcukaitobi said section 86 gave MPs to vote according to their personal conscience on the person to be appointed president of the country.
“The logic underlying Section 86 applies with equal force to section 102 of the Constitution. “What MPs are being asked is to decide the most contentious question: Is this man fit to remain in office?”
Ngcukaitobi said the vote was also a way for the legislature to hold the executive to account.
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“In those circumstances‚ there is a comparable scenario. One must come to conclusion that the most logical way of promoting the value of holding the executive to account is a secret ballot.”
Anton Katz‚ SC‚ for the Inkatha Freedom Party‚ said every motion of no confidence should be dealt with by secret ballot.
Four friends of the court‚ the Council for the Advancement of the Constitution‚ the Unemployment People’s Movement‚ the Shosholoza Progressive Movement and the Institute for Security Studies‚ also made submissions to the court that were in support of the political parties.
The president and Mbete are asking for the application to be dismissed.
In his heads of argument‚ counsel for Mbete Marumo Moerane SC said Mbete was open to persuasion by political parties to consider that voting be allowed by way of secret ballot.
However‚ Mbete said neither the Constitution nor the rules of the National Assembly expressly provided for voting on a motion of no confidence by secret ballot.
In his heads of argument‚ counsel for Zuma Ishmael Semenya SC said a vote by secret ballot was not required by section 102 of the Constitution.
He also said the UDM had failed to invoke the Constitutional Court’s exclusive jurisdiction to hear the case.
Semenya said UDM had to show that the Constitution requires a secret ballot to be cast in relation to a motion of no confidence in the president.
“This‚ the (UDM) has not established‚” Semenya said.