Pretoria - Lawyers tasked with challenging National Assembly Speaker Nosiviwe Mapisa-Nqakula’s decision to refuse a secret ballot during the Phala Phala parliamentary debate last year had a tough time convincing Western Cape High Court judges yesterday.
In an application brought before the court by the African Transformation Movement (ATM), party leader Vuyo Zungula wanted the court to review the speaker’s decision, set it aside and declare it unconstitutional and invalid.
Such relief would see the Phala Phala matter returning to Parliament for another vote.
However, the ATM faced a mammoth task trying to convince the Western Cape High Court.
Justices Ashley Binns-Ward, Daniel Thulare and Andre le Grange demanded to know what was wrong with the speaker’s decision to exercise an open democratic process, where MPs were forced to openly vote for or against the adoption of the Section 89 panel report.
The vote took place in December. A majority of ANC MPs voted against the establishment of an impeachment inquiry to test whether President Cyril Ramaphosa had broken the law.
Only five ANC MPs, including Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma, voted for the adoption of the report, triggering the ANC national executive to debate whether they should be charged for voting against the party line.
The judges took issue with the contents of the application.
They argued that MPs from all political parties represented in Parliament do their work in accordance with their respective party lines.
“Four hundred persons go to vote, and when they vote… we know the facts, that there are consequences to voting a certain way if you belong to a particular party,” ATM legal representative advocate Anton Katz told the court, before being cut short.
“If I understand the papers correctly it seems that it is the position of all parties that if you vote contrary to the position that has been pronounced by the party, you (face disciplinary action), including your party,” said Justice Thulare.
Katz objected to the suggestion that he had a political party. “I haven't got a party,” said Katz, laughing.
Thulare stated that his argument applied to the applicant, which is the ATM.
“This is what is commonly referred to as democratic centralism or something akin to that. Once the issues are debated internally (the line must be followed).
“I’ve seen that in the constitution of the EFF, I’ve seen that in the constitution of the IFP, I’ve seen that in the constitution of the DA, or almost all the parties whose excerpts of constitutions I have read, subscribe to that position.
“Now you come carrying a white dove and complaining that white doves fly,” said Thulare.
Advocate Katz, who is a senior counsel, capitulated to the court’s line of thinking in terms of issues involving the party line but differed on interpretation of the circumstances.
He argued that in the famous Nkandla judgment, the Constitutional Court ruled that MPs did not vote as members of their parties but as representatives of the people of South Africa.
He said parliamentarians should vote according to their conscience, as opposed to the wishes of their parties.
Justice Thulare retorted: “Isn’t that part of the problem? I see your client introduces and centres his complaints around conscience, which speaks to moral rightness or wrongness.
“But I’ve checked on the oath of office that is taken by MPs. I don’t see anything that speaks to voting on the dictates of your conscience. The Constitution is very clear.
“I’m making these comments just to indicate to you to say, what the law expects, and what political parties do in practice may be two different things, but we must speak to the law because we pronounce on the law,” said Justice Thulare.