ATM has filed an urgent application in the Western Cape High Court to review and set aside the voting method used during the vote on the future of the Phala Phala report on 13 December 2022.

National Assembly Speaker Nosiviwe Mapisa-Nqakula declined two requests by the ATM to allow Members of Parliament (MPs) to vote through a secret ballot following the debate on the Section 89 report.

The ATM’s application to force Mapisa-Nqakula to hold a secret vote was then struck from the roll due to “self-created” urgency.

The crucial vote was set to determine whether impeachment proceedings should be launched against President Cyril Ramaphosa.

The report found, among other things, that Ramaphosa may have violated the Constitution.

Lawmakers, through a simple majority, rejected the motion, rendering the three-member panel’s report to the dustbin.

Ramaphosa has approached the Constitutional Court to take the report on judicial review.

In the ATM's application to the Western Cape High Court, the party argued that “exceptional circumstances” warranted Mapisa-Nqakula to “deviate from the principle of openness” and hold the vote via a secret ballot.

The ATM asked the court to declare the denial invalid.

However, in a media statement on Thursday, Parliament told the ATM that officials are on holiday.

“[T]he National Assembly and the National Council of Provinces are currently on recess, and therefore the offices of Parliament are accordingly closed until January 2023.”

Mapisa-Nqakula in her initial rejection of the ATM's plea said that:

“[A] closed voting procedure will deprive the citizens of identifying the positions of their representatives across party lines and that this may facilitate the possibility of corruption aimed at influencing members to vote in a manner where they will be shielded from accountability to the people they represent for the exercise of their constitutional duty.”

READ: Tributes for KZN ANC delegates killed in crash after conference

Parliament has vowed to respond to the ATM’s latest court challenge and apply for the timeframes to be amended.

To grant a secret ballot – or not

The Constitutional Court ruled in June 2017 that the Speaker of Parliament has the power to decide whether to allow MPs to vote in secret on any issue.

The case by the United Democratic Movement (UDM) sought that a vote on a motion of no confidence in former President Jacob Zuma is conducted by secret ballot.

In the landmark unanimous judgment by the apex court – former Chief Justice Mogoeng Mogoeng found that the aim of the voting procedure is to enhance the effectiveness of accountability mechanisms and safeguard the best interest of South Africans.

He held that the Speaker’s determination is “situation-specific”.

The factors the Speaker must consider when deciding the voting procedure of a motion:

• whether the chosen voting procedure would allow Members of the National Assembly to vote according to their conscience and in the furtherance of the best interests of the people;
• whether the prevailing circumstances are either peaceful or toxified and potentially hazardous;
• the imperative of the Speaker’s impartiality must be consciously factored into the decision-making process;
• the effectiveness of a motion of no confidence as an accountability and consequence-management tool must be enhanced by the chosen voting procedure;
• the possibility of corruption or bribes in the event of a secret ballot must be considered;
• the need for the value of transparency to find expression in the passing of the motion must be taken into account;
• the decision must be rationally connected to the purpose of a motion of no confidence and should not be made arbitrarily.