Rewind on rules for Ramaphosa vote of no confidence

President Cyril Ramaphosa, after leading the ANC to its worst electoral performance since the advent of democracy, could face a vote of no confidence by secret ballot in parliament, an event that could embolden his opponents in the governing party.

This follows an order issued in the Supreme Court of Appeal on Thursday that parliamentary speaker Nosiviwe MapisaNqakula” decision on must whether take a a vote “fresh of no confidence in Ramaphosa should be open or secret.

The motion was first proposed by the African Transformation Movement (ATM), a two-seat party that has long faced accusations that it is linked to Ace Magashule, the ANC’s suspended secretary-general.

The vote stalled for almost two years due to litigation.

On Thursday, the Supreme Court of Appeal set aside a high court judgment upholding the decision of Mapisa-Nqakula’s predecessor, Thandi Modise, to deny the ATM’s call for a secret vote. The ruling means a process to evaluate Ramaphosa’s per

formance in a parliamentary poll goes back to the start, some 22 months since it was first tabled.

The motion could be a political reckoning for Ramaphosa, particularly in light of the ANC’s poor results in the 2021 local government elections, in which it fell below 50% of the national vote for the first time.

A secret ballot could lay bare divisions in the ANC’s caucus, with parliamentarians shielded by anonymity. In contrast, an open vote is likely to encourage MPs to vote as a block, shoring up support for the president. This occurred during Jacob Zuma’s presidency, even with many in the party incensed by corruption under his watch.

Even with the shield of a secret ballot only some ANC MPs would risk the party’s purported unity – and their jobs – in a vote against the leader.

Since his narrow victory at Nasrec in 2017, Ramaphosa has faced opposition from elements loyal to Zuma, loosely organised under the banner of radical economic transformation.

The ANC’s next elective conference is scheduled for 2022, though it is as yet unclear the radical economic transformation grouping has a candidate able to seriously challenge Ramaphosa and consolidate a support base within the party.

Ramaphosa remains SA’s most popular leader among voters and enjoys broad support in the alliance and in business.

Modise’s refusal to grant ATM’s secret ballot led to a review in the high court in the Western Cape, which was decided in March 2021. The party argued Modise’s decision was irrational and she had wrongly placed an obligation on ATM to motivate for why secrecy was necessary.

After a defeat in that court, the ATM took the Western Cape decision on appeal. The Supreme Court of Appeal heard arguments last month.

The ATM raised a Constitutional Court decision from 2017 on a vote of no confidence in Zuma, noting the apex court was unanimous that the speaker’s decision on a ballot’s nature must be rational. Modise was obliged, the ATM submitted, to take into account the political environment, risks of corruption and the public’s best interests.

Judge Trevor Gorven penned the Supreme Court of Appeal judgment, with acting judge president Xola Petse and judges Caroline Nicholls, Anna Kgoele and John Smith concurring.

Gorven, writing for the group of judges, noted that the speaker, now Mapisa-Nqakula, accepted in Supreme Court of Appeal proceedings there was no onus on the ATM to make out a case for a secret vote. Therefore, he continued, the appeal court was only concerned with the proper exercise of the speaker’s discretion in deciding on a request for a vote by secret ballot.

“Since she [Modise] failed to appreciate ‘how she was to go about making her decision she could not properly and lawfully apply her mind to the merits’. In such circumstances the correctness of the ultimate decision is irrelevant,” he wrote.

The appeal court evaluated Modise’s approach in exercising her power and examined her reasons as detailed on three occasions: in a letter dated March 5 2020; another letter dated November 30 2020; and in her answering affidavit. These responses indicated Modise held the view that the ATM bore the onus to provide grounds for a secret ballot.

“She … misunderstood the nature of the discretion to be exercised,” Gorven wrote.

Because of this, he continued, her standpoint was irrational. “As such, the high court should have reviewed and set aside her decision. This all means that the appeal should be upheld”. The court has not impelled MapisaNqakula to decide upon either an open or secret ballot. Rather, the judgment indicates she must make a rational decision.