Phala Phala report voting: ATM’s case most speculative, argues Ngcukaitobi

Advocate Tembeka Ngcukaitobi SC. Picture: EPA/HERMAN VERWEY/POOL

Advocate Tembeka Ngcukaitobi SC. Picture: EPA/HERMAN VERWEY/POOL

Published Feb 15, 2023


Cape Town - The ANC didn’t call for an open voting system in its vote against the adoption of the Phala Phala report in Parliament, the governing party argues.

The party’s argument was advanced by advocate Tembeka Ngcukaitobi SC, representing the ANC, before a full Bench of the Western Cape High Court in the matter between the African Transformation Movement (ATM) versus National Assembly Speaker Nosiviwe Mapisa-Nqakula.

The matter relates to the December 13 vote on the adoption of the Phala Phala report on which ANC chairperson Gwede Mantashe allegedly issued an instruction for the ANC caucus to reject.

The ATM took Mapisa-Nqakula to court with an urgent application asking the court to review, set aside and declare invalid the National Assembly’s vote, which rejected the three-member panel’s Phala Phala report that found that President Cyril Ramaphosa had an impeachable case to answer.

The ANC and other parties are respondents. “It’s utterly false that it was the ANC that was driving an open voting system. It was also the DA and everybody else,” Ngcukaitobi said.

He said it was a fact that the ATM and the EFF had revised their positions on the nature of the vote and later asked for a secret voting system, claiming that the facts had changed after public statements by the ANC top brass, chairperson Gwede Mantashe and the then-treasurer-general Paul Mashatile.

When a judge asked Ngcukaitobi whether more ANC MPs could have dissented in a secret ballot, Ngcukaitobi said: “It is the most speculative case I’ve ever encountered.”

Advocate Anton Katz SC, for the ATM, had spent the better part of day one of the proceedings trying to convince the full Bench that there had been “threats” of discipline against ANC MPs who didn’t toe the party line.

Ngcukaitobi said there was no evidence of these threats. “So you are asked, justice, to speculate, draw inferences and make hypothetical conclusions. It’s actually ridiculous,” he said.

Earlier, EFF lawyer advocate Mfesane Ka-Siboto argued that the Speaker had ignored facts, while the Speaker’s lawyer, advocate Steven Budlender, said Mapisa-Nqakula had been exercising her authority.

Reading from a previous Constitutional Court judgment, which he only referred to as New National Movement, he said MPs could follow the dictates of their conscience, “but they do so at their own peril because if they need to be re-elected, they need to bear in mind party discipline”.

Speaking off-the-cuff, Ngcukaitobi said: “No one says you may not do what you want in Parliament. Vote according to your conscience.

“But also accept that in a multi-party system in which your name came via your party, the party may legitimately take into account your conduct in Parliament in disobeying a three-line whip. This is what happens in the Labour Party in the UK.”

Judgment was reserved.