ConCourt rules on secret ballot today

It’s a busy time for President Jacob Zuma as he appears in parliament today to answer oral questions while the Constitutional Court delivers its verdict on the secret ballot action brought by the United Democratic Movement (UDM).

In the back of President Jacob Zuma’s mind will be the public protector who, on the one hand – according to popular opinion – has kicked open National Treasury’s doors while on the other opposes his application for a judicial review of the State of Capture report.

How spirited the public protector’s defence of the report will be remains to be seen.

Be that as it may, and given Zuma will undoubtedly have his hands full in the National Assembly today, a ruling in the UDM’s favour is by no means a slam-dunk according to University of Johannesburg constitutional law expert Professor Mia Swart.

“Even though I can see the need for it, in particular in the context we as South Africa find ourselves now, I don’t think it can be said uncategorically that, if there is no secret ballot, there is no free voting,” said Swart.

“The condition of free voting has never been secret voting. It just means it should be un-coerced, you should be informed, and not intimidated in any way.”

Swart noted that simply because a president was elected through a secret ballot, it didn’t necessarily follow he or she should be removed through a secret ballot.

“Even if the Constitutional Court gives the go-ahead – and I think there’s a fairly good chance – it doesn’t mean the Speaker of Parliament has to order a secret ballot, it will still remain in her discretion,” Swart said.

“The ConCourt can only do so much, I think in the end a lot will be left to the discretion of the Speaker, and all indications are that she would make a decision in the interest of the ANC. After that, the courts will not be able to do very much to stop her or change her mind.”

Swart said the decision could be reviewed in court, and then she would have to give reasons why she was exercising her discretion in that particular way. However, at some point, legal action will have to come to a stop. I believe at no point a court will be able to force her to hold a secret ballot,” Swart said.

Even if a secret ballot is held, a big part of the opposition’s problem would be convincing the newly reconstituted cabinet to vote away their new-found benefits and power.