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In the Constitutional Court of South Africa Case No IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: _________ In the matter between: UNITED DEMOCRATIC MOVEMENT Applicant and SPEAKER OF THE NATIONAL ASSEMBLY First Respondent PRESIDENT JACOB ZUMA Second Respondent AFRICAN NATIONAL CONGRESS Third Respondent DEMOCRATIC ALLIANCE Fourth Respondent ECONOMIC FREEDOM FIGHTERS Fifth Respondent INKATHA FREEDOM PARTY Sixth Respondent NATIONAL FREEDOM PARTY Seventh Respondent CONGRESS OF THE PEOPLE Eighth Respondent FREEDOM FRONT Ninth Respondent AFRICAN CHRISTIAN DEMOCRATIC PARTY Tenth Respondent AFRICAN INDEPENDENT PARTY Eleventh Respondent AGANG SOUTH AFRICA Twelfth Respondent PAN AFRICANIST CONGRESS OF AZANIA Thirteenth Respondent AFRICAN PEOPLE’S CONVENTION Fourteenth Respondent FOUNDING AFFIDAVIT 1 THE PARTIES ........................................................................................................ 3 THE NATURE AND PURPOSE OF THE APPLICATION ...................................... 5 THE URGENCY OF THIS MATTER ...................................................................... 8 JURISDICTION .................................................................................................... 14 Exclusive jurisdiction ......................................................................................... 14 Direct access .................................................................................................... 16 THE SALIENT BACKGROUND FACTS .............................................................. 19 The decision to reshuffle ................................................................................... 19 The aftermath ................................................................................................... 20 The ANC’s clampdown on perceived dissent .................................................... 24 THE IMPUGNED DECISION ................................................................................ 29 The request from the UDM ............................................................................... 29 The decision ..................................................................................................... 31 THE UDM’S PRIMARY ARGUMENT: A SECRET BALLOT IS REQUIRED FOR ALL MOTIONS OF NO CONFIDENCE ................................................................ 32 A secret ballot is required to elect the President ............................................... 33 The absence of a secret ballot undermines the purposes of the no confidence motion ............................................................................................................... 36 Members of Parliament must be able to freely give effect to their oath and duty to the Constitution ............................................................................................. 40 THE UDM’S ALTERNATIVE ARGUMENT: THE CONSTITUTION PERMITS A SECRET BALLOT FOR NO CONFIDENCE MOTIONS ...................................... 43 THE UDM’S FURTHER ARGUMENT: IF THE NATIONAL ASSEMBLY RULES PURPORT TO PRECLUDE A SECRET BALLOT, THEY ARE UNCONSTITUTIONAL ........................................................................................ 49 CONCLUSION ..................................................................................................... 51 2 I, the undersigned, BANTUBONKE HARRINGTON HOLOMISA do hereby make oath and state that: 1 I am the leader of the United Democratic Movement and Member of Parliament representing it in the National Assembly. I am authorised to depose to this affidavit on behalf of the applicant. 2 The facts herein contained are both true and correct and save where otherwise stated within my own personal knowledge. 3 Where I make legal submissions I do so on the advice of the applicant’s legal representatives. THE PARTIES 4 The applicant is the United Democratic Movement (the UDM), a political party registered with the Independent Electoral Commission and having representation in the National Assembly with its address at 1st Floor, CPA House, 101 Du Toit Street, corner Proes Street, Pretoria. 5 The UDM brings this application in its own interest, on behalf of its members and in the public interest, all in accordance with section 38 of the Constitution. 6 The first respondent is the Speaker of the National Assembly elected in terms of section 52(1) of the Constitution as the presiding officer of the 3 National Assembly. The Speaker is cited in her official capacity as Speaker and as nominal respondent on behalf of the National Assembly in terms of section 23 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004, read with section 23 of the State Liability Act 20 of 1957, with her offices situated at Parliament Street, Cape Town, c/o the State Attorney, Johannesburg, which address is within 25 kilometres of this Court at North State Building, 95 Market Street, Johannesburg. Service will also be effected on the Speaker via e-mail due to the urgency of this matter. 7 The second respondent is President Jacob Zuma who is the President of the Republic of South Africa, care of the State Attorney, Johannesburg with its address at North State Building, 95 Market Street, Johannesburg. Service will also be effected on the President via e-mail due to the urgency of this matter. 8 The third to fourteenth respondents are the political parties who are represented in the National Assembly, arranged in the order of the size of their representation. Given the urgency of this matter, they will all be served via e-mail. 9 The second to fourteenth respondents are cited for such interest as they have in these proceedings. No order for costs is sought against them, save in the event of opposition to this application. In view of the urgency of this matter, they will be served with this application via e-mail. 4 THE NATURE AND PURPOSE OF THE APPLICATION 10 This is an urgent application relating to requests made by the applicant, the EFF and the DA for the convening of parliament before the scheduled date of 9 May 2017 for them to move a motion of no confidence in the President in terms of section 102(2) of the Constitution. 11 This application arises from the fact that the Speaker has refused the UDM’s request to have the voting on these motions be conducted by way of secret ballot. A copy of the UDM’s request is attached as UDM1 and the Speaker’s response as UDM2. 12 The motions of no confidence are currently scheduled to be determined by the National Assembly on 18 April 2017. However, as I explain below: 12.1 It is imperative that this Court hear and determine this application before that occurs; and 12.2 Accordingly, to the extent that this Court is not able to do so before 18 April 2017, the applicant will seek a short postponement of the motions of no confidence for that purpose. 13 The UDM’s case is that, on a proper construction of the relevant constitutional provisions and the Rules of the National Assembly, a secret ballot is required in respect of the motions of no confidence concerned. 13.1 The UDM’s first and primary contention is that a motion of confidence is always required to take place by secret ballot. 5 13.1.1 This is necessary in order to give effect to the objects of this unique mechanism, as those objects have been explained by this Court. Without a secret ballot, these objects are fatally undermined. 13.1.2 It is also necessary in view of the fact that the Constitution expressly recognises (in item 6(a) of Part A to Schedule 3) that whenever the members of the National Assembly are called upon to elect the President, this must take place via secret ballot. It follows by implication that when those members are to express a lack of confidence in the President and remove him from that position, a secret ballot must similarly be used. 13.2 The UDM’s second and alternative contention is that the Speaker at least has a discretion regarding whether to permit a motion of no confidence to take place via secret ballot. That discretion must be exercised by the Speaker applying her mind to the facts of each case. 13.3 The UDM’s third contention is that the Rules of the National Assembly do not preclude a secret ballot being used for a motion of no confidence or, in the alternative, that the Rules are constitutionally invalid to the extent that they purport to preclude this. 14 In the present case, the Speaker has adopted exactly the opposite approach. Her position is apparently that a motion of confidence may never take place 6 via secret ballot, irrespective of the circumstances. The UDM contends that this approach is unconstitutional and unlawful. To the extent that the Speaker’s decision to reject the UDM’s request is based on the abovementioned erroneous approach it stands to be reviewed and set aside on the grounds of unconstitutionality, unlawfulness and irrationality. 15 This application does not seek to prescribe to the National Assembly how to run its affairs. It merely seeks to establish that the decision of the Speaker that the Constitution and Rules prohibit a motion of no confidence being determined by secret ballot is not sustainable or consistent with our Constitution. Accordingly, save for the question of remedy, no difficulty of separation of powers arises. 16 In what follows, I deal with the following issues in turn: 16.1 Urgency; 16.2 Jurisdiction; 16.3 The background facts; 16.4 The decision at issue; 16.5 The UDM’s legal contentions; and 16.6 Remedy. 7 THE URGENCY OF THIS MATTER 17 At 12:14am on 31 March 2017, the President announced his cabinet re- shuffle. These
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