The DA and the EFF have requested a motion of no-confidence in President Zuma to take place according to a secret ballot.
As the Speaker, Baleka Mbete, has declared that the rules of Parliament do not provide for such a ballot, the Constitutional Court has been approached in this regard to decide whether a secret ballot should take place. What exactly is a motion of no-confidence and how did it originate in parliamentary practice and history?
The practice of a motion of no-confidence has its origin in the Westminster system. The first successful motion of no-confidence in British parliamentary history occurred in 1782 at the end of the American Revolution when, as a result of the defeat of the British forces commanded by Lord Cornwallis at the battle of Yorktown, Parliament at Westminster voted that it “no longer has confidence in the present ministers”, which was preceded by, according to Adams' Constitutional History of England, “many motions equivalent to a want of confidence carried against the ministry, before the king (George III) would yield, and at that moment only because Lord North (prime minister) peremptorily resigned…”
This did not, however, create a constitutional convention that a government defeated by a vote of no-confidence requires the dissolution of parliament and a general election.
Attempts by British prime ministers, such as Robert Peel, to govern in the absence of a parliamentary majority were abortive and, by the middle of the 19th century, the convention had been firmly established that a successful motion of no-confidence was sufficient to topple a government, bring about the dissolution of Parliament and a general election.
What was then established was that “on the confidence of the House of Commons it is immediately and vitally dependent. This confidence must always possess, either absolutely… or relatively and conditionally”. Altogether, in the UK, there have been 11 prime ministers defeated through a no-confidence motion. Since 1925, there has only been one.
This was in 1979, against the government of James Callaghan, carried by one vote, (311-310), forcing the dissolution of parliament and a subsequent general election, won by Margaret Thatcher.
In SA parliamentary history, Kilpin, in his book on Parliamentary Procedure, states that, in the Cape House of Assembly, Sprigg was defeated on direct no-confidence in 1881 and 1898, and three other ministries were defeated in 1884, 1890 and 1904 respectively on other motions.
In the Union of South Africa, in the House of Assembly, the Hertzog Ministry was defeated in 1939, involving the historic motion for participation in the war against Germany in 1939 (World War 2). Parliament decided on “an immediate declaration of war on Germany by 80 votes to 67, and General Hertzog, the prime minister, having been refused a dissolution by the governor-general, Sir Patrick Duncan, resigned”.
What is manifestly clear in relation to the present political and constitutional controversy is that, if a secret ballot is not authorised by the Constitutional Court and there is an open vote, ANC members in general are very unlikely to defy their caucus and vote according to their conscience. It is, therefore, abundantly clear that the ruling of the Constitutional Court on whether the Speaker can be compelled to hold a secret ballot is of crucial importance.
President Zuma has survived previous votes of no-confidence. The last one was held on November 10, 2016, where the motion was defeated by 214 votes against 126 in favour of the motion and 58 abstentions. Whether he will continue to survive such motions remains to be seen.
However, of paramount significance is that not only the fate of President Jacob Zuma, but that of the country, depends on this.
Devenish is an emeritus professor at UKZN and one of the scholars that assisted in drafting the interim constitution in 1993