CHIEF JUSTICE Mogoeng Mogoeng has reminded National Assembly Speaker Baleka Mbete that the power she wields belongs to South Africans and must not be used "arbitrarily or whimsically".
Yesterday, Mogoeng delivered the Constitutional Court’s unanimous judgment on the UDM’s bid to force Mbete to conduct a vote of no confidence in President Jacob Zuma by secret ballot.
The country’s top judge said Mbete’s power to determine the voting procedure in a motion of no confidence belongs to “the people and must thus not be exercised arbitrarily or whimsically”.
“There must always be a proper and rational basis for whatever choice the speaker makes in the exercise of the constitutional power to determine the voting procedure,” Mogoeng said.
He warned that Mbete must ensure that her decision strengthens democracy and does not undermine it.
The Constitutional Court has referred the UDM’s request that the motion be decided through secret ballot back to Mbete to make a fresh decision because for the apex court “to order a secret ballot would trench separation of powers”.
Mogoeng said Mbete should take into account the real possibilities of corruption, the prevailing circumstances and whether they allow MPs to exercise their vote in a manner that does not expose them to illegitimate hardships.
“Whether the prevailing atmosphere is generally peaceful or toxified and highly charged, is one of the important aspects of that decision-making process,” Mogoeng said.
The Institute for Security Studies has previously told the Constitutional Court that intimidation and threats against outspoken ANC MP Dr Makhosi Khoza were likely to constrain how she and other parliamentarians exercise their rights in the vote of no confidence.
The Council for the Advancement of the SA Constitution also told the court that Mbete was in an irreconcilable conflict of interests as she could not seek, as ANC chairwoman, to ensure that her party speaks with one voice, and, as speaker, act impartially in ensuring that all members, including ANC members, vote according to their constitutional obligation.
Mogoeng said nowhere does the country’s supreme law provide for MPs to swear allegiance to their political parties.
He added that the purpose of the motion of no confidence was to enhance the enforcement of accountability by allowing MPs to express and act firmly on their dissatisfaction about the executive’s performance in-between elections.
According to Mogoeng, because the speaker is chosen among MPs, she has the responsibility to balance party interests with the people’s.
Yesterday, parliamentary spokesman, Moloto Mothapo, said Mbete was committed to ensuring that the judgment was given effect.