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Phala Phala secret ballot: ANC lawyer says there’s no evidence ANC MPs were bribed or influenced
Advocate Tembeka Ngcukaitobi also dispelled the view that the ANC does not want to hold Ramaphosa accountable.
President Cyril Ramaphosa at Nasrec in Johannesburg on 17 December 2022. Picture: Nigel Sibanda
The African National Congress (ANC) has disputed claims that its Members of Parliament (MPs) were pressured to reject the Section 89 report on Phala Phala.
The full bench of the Western Cape High Court continued to hear arguments on the second day of the African Transformation Movement’s (ATM) case against Parliament’s decision not to continue with impeachment proceedings against President Cyril Ramaphosa regarding the Phala Phala saga.
The ATM is also challenging National Assembly Speaker Nosiviwe Mapisa-Nqakula’s decision to reject a secret ballot vote during a sitting in the House on 13 December 2022.
The party has asked for the National Assembly’s vote to be declared unconstitutional and invalid. It also wants a declaratory order that such a vote must be by secret ballot.
The Economic Freedom Fighters (EFF) joined the ATM’s case, which was opposed by the Speaker, on Monday.
Undue political pressure
Both parties have alleged that ANC MPs were under threat of being disciplined if they did not reject the Section 89 report, which found the president may have violated the Constitution and anti-corruption laws.
But Advocate Tembeka Ngcukaitobi, counsel for the ANC, refuted the ATM’s claim during court proceedings on Tuesday, saying the alleged unconstitutionality of the 13 December vote could only stand if there was evidence that ANC MPs were pressured to vote a certain way.
“This is not one of those cases where you can impugn the vote on the grounds that people were bribed or were unduly influenced and there was undue political pressure. The case is a purely procedural one,” he said.
ALSO READ: EFF challenges Parliament’s open vote on Phala Phala, seeks to join Ramaphosa’s litigation
Ngcukaitobi pointed out that the ANC NEC only met after the Speaker had announced her decision on the voting procedure on 5 December, when the National Assembly’s Programming Committee meeting was convened.
“At the time she makes a decision she does not know what the NEC is going to decide, which completely shows that this idea that the NEC has put undue pressure is unfounded.
“The Speaker acted independently. It’s after the 5th [of December] where the ATM essentially attempts to get the Speaker to reconsider her decision and she tells them that she is not going to [do so].”
ATM leader Vuyo Zungula had called for a secret ballot on 1 December.
Manual voting system
The advocate revealed the ATM itself agreed to a proposal by the Democratic Alliance (DA) to have a manual voting process during the same meeting. This would mean voting could not be secret.
“Last night, I checked the replying affidavit to see how the [ATM] deals with the allegation and it was completely ignored. The EFF [on the other hand] doesn’t touch it at all. So what we have is something that is glossed over… in fact it was just never attended to. It’s the most remarkable thing.
“It’s perfectly understandable for the Speaker to say ‘I already made my decision and you yourselves confirmed that you supported what the DA said and the reasons the DA provided’,” he said.
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“What this shows is that it is utterly false on this fact that it is the ANC driving the open voting system. It was also the DA and everybody else. It is true that the ATM and the EFF revised their positions and subsequently asked for a secret system claiming that the facts had changed when Mr Paul Mashatile expressed what the ANC’s position was going to be.”
Ngcukaitobi also argued that some ANC MPs, such as Mervyn Dirks, had publicly said they would not toe the party line and vote in support of adopting the Phala Phala report.
“Some members of the ANC explicitly stated what their position was going to be and the Speaker said she took that into consideration in her letter,” he continued.
Watch the court proceedings below, courtesy of SABC:
The advocate further dispelled the view that the ANC does not want to hold the president accountable on the Phala Phala matter.
“Their position is that there are certain gaps we have identified in this report and there are certain other procedures that are still being pursued including the Public Protector, the Hawks, etcetera.
“[The ANC is saying] at a certain point in time [these investigations] will all be conclusive and once the picture is clear they may reconsider its position. So this idea that the topic is closed because of that vote is unfounded.”
He added that there was a lot of outstanding evidence on the Phala Phala matter.
“Who knows what the Public Protector or the Hawks will find?”
‘Exercising power’
Responding to the arguments made by the ANC and the Speaker, advocate Anton Katz, representing the ATM, told the court it was absurd to suggest previous cases on a secret ballot relating to the party’s motion of no confidence against Ramaphosa was moot because of the time that has elapsed.
“There’s no reason that it is mooted,” he said.
Katz on Monday had referred to previous judgments of the Supreme Court of Appeal (SCA) and Constitutional Court (ConCourt), which have ruled on the issue of secret ballots.
Meanwhile, he also argued that there was no legal basis for Mapisa-Nqakula to reject the secret ballot vote.
“If the Speaker did not exercise her power validly then the vote itself falls because it was dependent on the validity of her exercising power,” the advocate added.
The judgment has been reserved.
READ MORE: Public Protector says it has completed Phala Phala investigation
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