A political party challenged the decision of the Speaker of the National Assembly to hold a vote of no confidence in the President by secret ballot.  The court held that the onus was not on the political party to show the need for a secret ballot by producing evidence or reasons for that procedure to be adopted.  The Speaker had to exercise her own discretion.

Parliamentary rules empower the Speaker to decide how a particular motion of no confidence is to be dealt with and the Speaker “must decide how it is to be conducted”.  Members of political parties swear or affirm faithfulness to the Republic of South Africa and obedience to the Constitution and its laws, and not to their political parties.  If there is a conflict between upholding constitutional values or party loyalty, parliamentarians irrevocably undertake to serve the people and do what is in their best interests, which must prevail over political party directions.

The Speaker’s decision was challenged under a rationality review where the courts are obliged to examine the means selected to carry out the law to determine whether they were rationally related to the objective of the law in question.  Both possibilities of an open or secret ballot are permissible constitutionally and therefore the Speaker has to make a decision according to the circumstances. The issue was referred back to parliament for this purpose.

We have summarised this case because similar issues may arise in a private meeting when the chairperson is requested to hold a secret ballot.  The chairperson must make a decision in the circumstances whether it is rational to do so.

African Transformation Movement v The Speaker of the National Assembly and Others [2021] ZASCA 164 (2 December 2021)