15 quotes from Chief Justice Mogoeng Mogoeng’s Consitutional Court judgment on the secret ballot matter:
1. “Because it is individual Members who really have to vote‚ provisions are couched in the language that recognises the possibility of majorities supporting the removal of the President and the Speaker. Conceptually‚ those majorities could only be possible if Members of the ruling party are also at liberty to vote in a way that does not always have to be predetermined by their parties.”
2. “It would be quite surprising if the senior office-bearers in Parliament were not appointed or elected with a significant input by the President and other senior party officials. There are therefore institutional and other risks that Members‚ particularly of any ruling party‚ are likely to get exposed to when they openly question or challenge the suitability of their leader(s) for the position of President.”
3. “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties‚ important players though they are in our constitutional scheme. Meaning‚ in the event of conflict between upholding constitutional values and party loyalty‚ their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”
4. “Crass dishonesty‚ in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities‚ must not be discounted from the Speaker’s decision-making process. Anybody‚ including Members of Parliament or of the Judiciary anywhere in the world‚ could potentially be ‘bought’. When that happens in a motion of no confidence‚ the outcome could betray the people’s best interests.”
5. “The correct exercise of Parliament’s powers in relation to a motion of no confidence in the President‚ must therefore have the effect of ensuring that the voting process is not a fear or money-inspired sham but a genuine motion for the effective enforcement of accountability.”
6. “Each Member must‚ depending on the grounds and circumstances of the motion‚ be able to do what would in reality advance our constitutional project of improving the lives of all citizens‚ freeing their potential and generally ensuring accountability for the way things are done in their name and purportedly for their benefit.”
7. “The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise. It is neither for the benefit of the Speaker nor his or her party.”
8. “The power that vests in the Speaker to determine the voting procedure in a motion of no confidence‚ belongs to the people and must thus not be exercised arbitrarily or whimsically. Nor is it open-ended and unguided. It is exercisable subject to constraints. The primary constraint being that it must be used for the purpose it was given to the Speaker – facilitation of the effectiveness of Parliament’s accountability mechanisms.”
9. “Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility. The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.”
10. “Our interpretation of the relevant provisions of the Constitution and the rules makes it clear that the Speaker does have the power to authorise a vote by a secret ballot in motion of no confidence proceedings against the President‚ in appropriate circumstances.”
11. “To the extent that Tlouamma (a court decision used in argument) might have been understood to have held that a secret ballot procedure is not at all constitutionally permissible‚ that understanding is incorrect. The Speaker’s decision was invalid and must be set aside.”
12. “The Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot. She only lamented the perceived constitutional and regulatory reality that she lacked the power to authorise voting by secret ballot. Meaning‚ now that it has been explained that she has the power to do that which she is not averse to‚ she has the properly-guided latitude to prescribe what she considers to be the appropriate voting procedure in the circumstances.”
13. “It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the President conducted by secret ballot‚ as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it. To order a secret ballot would trench separation of powers.”
14. “The Speaker’s decision that she lacks the constitutional power to prescribe a secret ballot in a motion of no confidence in the President is to be set aside. The UDM’s prayer for the order that prescribes a secret ballot as the voting procedure will be referred back to the Speaker to decide.”
15. “All parties to this application have recorded success against the Speaker and the President. The unsuccessful parties are therefore to pay the costs of the applicant and all other participating respondents.”
The secret ballot judgment in 15 fiendishly clever quotes
15 quotes from Chief Justice Mogoeng Mogoeng’s Consitutional Court judgment on the secret ballot matter:
1. “Because it is individual Members who really have to vote‚ provisions are couched in the language that recognises the possibility of majorities supporting the removal of the President and the Speaker. Conceptually‚ those majorities could only be possible if Members of the ruling party are also at liberty to vote in a way that does not always have to be predetermined by their parties.”
2. “It would be quite surprising if the senior office-bearers in Parliament were not appointed or elected with a significant input by the President and other senior party officials. There are therefore institutional and other risks that Members‚ particularly of any ruling party‚ are likely to get exposed to when they openly question or challenge the suitability of their leader(s) for the position of President.”
3. “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties‚ important players though they are in our constitutional scheme. Meaning‚ in the event of conflict between upholding constitutional values and party loyalty‚ their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”
4. “Crass dishonesty‚ in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities‚ must not be discounted from the Speaker’s decision-making process. Anybody‚ including Members of Parliament or of the Judiciary anywhere in the world‚ could potentially be ‘bought’. When that happens in a motion of no confidence‚ the outcome could betray the people’s best interests.”
5. “The correct exercise of Parliament’s powers in relation to a motion of no confidence in the President‚ must therefore have the effect of ensuring that the voting process is not a fear or money-inspired sham but a genuine motion for the effective enforcement of accountability.”
6. “Each Member must‚ depending on the grounds and circumstances of the motion‚ be able to do what would in reality advance our constitutional project of improving the lives of all citizens‚ freeing their potential and generally ensuring accountability for the way things are done in their name and purportedly for their benefit.”
7. “The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise. It is neither for the benefit of the Speaker nor his or her party.”
8. “The power that vests in the Speaker to determine the voting procedure in a motion of no confidence‚ belongs to the people and must thus not be exercised arbitrarily or whimsically. Nor is it open-ended and unguided. It is exercisable subject to constraints. The primary constraint being that it must be used for the purpose it was given to the Speaker – facilitation of the effectiveness of Parliament’s accountability mechanisms.”
9. “Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility. The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.”
10. “Our interpretation of the relevant provisions of the Constitution and the rules makes it clear that the Speaker does have the power to authorise a vote by a secret ballot in motion of no confidence proceedings against the President‚ in appropriate circumstances.”
11. “To the extent that Tlouamma (a court decision used in argument) might have been understood to have held that a secret ballot procedure is not at all constitutionally permissible‚ that understanding is incorrect. The Speaker’s decision was invalid and must be set aside.”
12. “The Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot. She only lamented the perceived constitutional and regulatory reality that she lacked the power to authorise voting by secret ballot. Meaning‚ now that it has been explained that she has the power to do that which she is not averse to‚ she has the properly-guided latitude to prescribe what she considers to be the appropriate voting procedure in the circumstances.”
13. “It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the President conducted by secret ballot‚ as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it. To order a secret ballot would trench separation of powers.”
14. “The Speaker’s decision that she lacks the constitutional power to prescribe a secret ballot in a motion of no confidence in the President is to be set aside. The UDM’s prayer for the order that prescribes a secret ballot as the voting procedure will be referred back to the Speaker to decide.”
15. “All parties to this application have recorded success against the Speaker and the President. The unsuccessful parties are therefore to pay the costs of the applicant and all other participating respondents.”
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