The party, which has two seats in the National Assembly, first brought the motion to Modise in February last year.
Then, the ATM asked Modise to have the voting by secret ballot.
But she declined their request, saying the party did not provide evidence of “a highly charged atmosphere, intimidation of any member or any demonstrable evidence of threats against the lives of members and their families, which may warrant a secret ballot”.
Modise also referred to the constitutional imperative of transparency.
Eventually, the motion made it to the National Assembly’s order paper in late November, to be debated in early December.
Again, ATM leader Vuyolwethu Zungula asked Modise to reconsider. Again she declined, noting the logistics of the hybrid virtual sittings due to the Covid-19 pandemic.
And so, the party lodged its application at the Western Cape High Court, the before day the motion was scheduled to be heard.
The court application was postponed to this Wednesday.
Zungula then wrote to Modise to ask that the motion be postponed, a request she granted.
The ATM argued she was “biased and irrational” in refusing a secret ballot.
“The MPs’ faithfulness can best be, in my opinion, achieved when testing their personal conscience rather than when the MPs act on the mandate of his or her party,” Zungula stated in an affidavit.
He likened the current political climate to that of 2017, when former speaker Baleka Mbete allowed a motion of no confidence in corruption accused former president Jacob Zuma to be voted on by secret ballot.
Several ANC MPs broke rank and voted with the opposition, but Zuma narrowly survived.
“The same decision by the speaker in 2017 of holding the vote of no confidence with secret ballot shall apply even in current circumstances,” read Zungula’s affidavit.
A successful application to the Constitutional Court paved the way for Mbete to have the 2017 motion voted on by secret ballot.
In the current case, Modise’s legal team argued the High Court did not have jurisdiction over the case, as it related to MPs exercising a constitutional duty – holding the executive to account – and was therefore in the sole purview of the Constitutional Court.
“The consequence of the applicant’s approach, and on the facts of this case, is that it reduces the recognised and preserved discretion vesting in the speaker to a mere rubber stamp. This court, with respect, should reject this,” read her heads of argument.
After listening to arguments from advocate Kameel Premhid, for Modise, and advocate Anton Katz SC for the ATM, acting Judge James Lekhuleni reserved judgment on Wednesday morning.