Legal debate: Does Mbete have the power to hold a secret ballot (or not)

The United Democratic Movement (UDM) has until the close of business on Wednesday to file responding papers in its Constitutional Court application for a secret ballot in a motion of no confidence in President Jacob Zuma.

The vote due to take place on 18 April was postponed because of the legal action.

READ: Opposition parties request postponement for motion of no confidence

Last week, Zuma and parliamentary speaker Baleka Mbete filed a response to the UDM's application, stating that the opposition party's case has no merit.

Mbete said she does not have the power to allow a secret ballot, neither does the Constitution. The President has argued it's highly speculative for the party to suggest that ANC MPs are being intimidated to not vote against him.

ALSO READ: Baleka Mbete and President Zuma oppose UDM's secret ballot vote in Parliament

Eusebius McKaiser spoke to Prof. James Grant, Associate Professor of law at the University of the Witwatersrand, Prof. Pierre De Vos, Constitutional Law expert and Tyrone Maseko, Criminal Lawyer.

The panel looks at what steps the opposition can take in ensuring Mbete’s discretion to rule that the usual open ballot system be used.

Maseko looks at the dilemma that the UDM currently faces.

The provision that deals with the removal of the President or a vote of no confidence, nowhere does it say that it has to be held by secret ballot...Now the question is how should this voting take place? Then we have to refer back to the provisions of the Constitution and if the Constitution is silent on it, we look at the rules.... In those rules, is there provision for this? Doesn't seem that there is, and that is the dilemma that the UDM faces.

Tyrone Maseko, Criminal Lawyer

I don't believe Baleka Mbete has a discretion necessarily to decide whether to hold a secret ballot or not.

Tyrone Maseko, Criminal Lawyer

But while Maseko argues that he does not believe Baleka Mbete has the discretion to decide whether to hold a secret ballot or not, De Vos disagrees. He says the court will find that the Parliamentary Speaker does indeed have such discretionary powers.

I cannot imagine that the court is not going to find that she does have a discretion... I am far more skeptical about the meaty substantive argument about whether the court will force the Speaker to have a secret ballot because it is not explicitly stated in the Constitution.

Pierre De Vos, Constitutional Law expert

About whether the court will force the Speaker to have a secret ballot....that argument is not going to be sustained. The constitution specifically says that parliament is supposed to decide its own process.

Pierre De Vos, Constitutional Law expert

Grant says an obligation of the Speaker of Parliament to protect MPs may influence the Constitutional court's decision.

The argument could be made on that basis that there is a very real risk of intimidation and reprisals if she doesn't opt for a secret ballot.

James Grant, Associate Professor of law at the University of the Witwatersrand

Click on the link below to listen to the full interview and an insightful explanation as to why Mbete may have to use her discretion in this case....

CapeTalk welcomes all comments that are constructive, contribute to discussions in a meaningful manner and take stories forward.

However, we will NOT condone the following:

  • Racism (including offensive comments based on ethnicity and nationality)
  • Sexism
  • Homophobia
  • Religious intolerance
  • Cyber bullying
  • Hate speech
  • Derogatory language
  • Comments inciting violence.

We ask that your comments remain relevant to the articles they appear on and do not include general banter or conversation as this dilutes the effectiveness of the comments section.

We strive to make the CapeTalk community a safe and welcoming space for all.

CapeTalk reserves the right to: 1) remove any comments that do not follow the above guidelines; and, 2) ban users who repeatedly infringe the rules.

Should you find any comments upsetting or offensive you can also flag them and we will assess it against our guidelines.

CapeTalk is constantly reviewing its comments policy in order to create an environment conducive to constructive conversations.

Read More
Naked Scientist: Your skin has a memory

Naked Scientist: Your skin has a memory

A new study has shown skin cells can remember previous injuries and respond faster if the same patch of tissue is injured again.

Why low sexual desire is not 'abnormal'

Why low sexual desire is not 'abnormal'

Low sex drive is common and non-sexual relationships can also be fulfilling, explains clinical sexologist Dr Eve.

Baleka Mbete and President Zuma oppose UDM's secret ballot vote in Parliament

Baleka Mbete and President Zuma oppose UDM's secret ballot vote in Parliament

A legal battle of note will ensue as UDM pushes for secret ballot vote in no confidence motion while facing opposition from Zuma

Parly places Zuma's no confidence vote on ice

Parly places Zuma's no confidence vote on ice

Parliament Speaker Baleka Mbete has decided to postpone the motion of no confidence in President Jacob Zuma until further notice.

DA: Parly Speaker has powers to halt no confidence debate until ConCourt ruling

DA: Parly Speaker has powers to halt no confidence debate until ConCourt ruling

The DA says Parliament is able to reschedule the motion of no confidence, until the ConCourt rules on the secret ballot matter.

Opposition parties request postponement for motion of no confidence

Opposition parties request postponement for motion of no confidence

ConCourt granted UDM access to argue why MPs should vote by secret ballot and allowed parties involved to file opposing papers.

Popular articles
Estate agent Aida admits it’s the source of SA’s largest data hack ever

Estate agent Aida admits it’s the source of SA’s largest data hack ever

The Money Show’s Bruce Whitfield interviews Stuff magazine’s Toby Shapshak.

UCT engineering student creates affordable grey water system

UCT engineering student creates affordable grey water system

Nkosinathi Nkomo came up with a system that could turn grey water into usable water amidst the Cape Town water crisis.

Meet Whitey Basson (the retail guru who turned Shoprite into a R127bn behemoth)

Meet Whitey Basson (the retail guru who turned Shoprite into a R127bn behemoth)

The Money Show’s Bruce Whitfield interviews the former CEO of Africa’s largest retailer by far.

CT airport shooting attempted hit on gang boss allegedly linked to '28s' -expert

CT airport shooting attempted hit on gang boss allegedly linked to '28s' -expert

A policing expert explains that the airport shooting may be linked to the shooting at a Stellenbosch nightclub this past weekend.

Almost 30 million SA ID numbers compromised after site hacked

Almost 30 million SA ID numbers compromised after site hacked

Independent Marketing Consultant in the Technology Space, Andrew Fraser says this looks like a leak and not a hack.

Cape Town International Airport shooting could be gang related - ACSA

Cape Town International Airport shooting could be gang related - ACSA

The incident happened in the early hours of Wednesday morning.