African Transformation Movement v The Speaker of the National Assembly and Others

The African Transformation Movement (ATM) tabled a motion of no confidence in President Cyril Ramaphosa on 11 February 2020, based on allegations of poor performance including the collapse of State Owned Entities and misleading Parliament regarding load-shedding. On 24 February 2020, the ATM requested that the Speaker of the National Assembly conduct the vote by secret ballot. The Speaker declined this request in a letter dated 5 March 2020, which the ATM claims was only received on 26 November 2020. The Speaker maintained her decision in a follow-up letter on 30 November 2020. The ATM then brought an urgent application in the Western Cape High Court seeking to review and set aside the Speaker's decision. The High Court dismissed the application, and the ATM appealed with leave of that court.

• Whether the Speaker's decision to decline the request for a secret ballot was rational
• Whether a party requesting a secret ballot bears an onus to prove the need for such a ballot
• Whether the Speaker applied the correct legal test in exercising her discretion
• Whether the Speaker's misunderstanding of the legal framework vitiated her decision

1. The appeal is upheld with costs, such costs to include those occasioned by the employment of two counsel. 2. The order of the high court is set aside and replaced with an order that: (i) The Speaker's decision to decline the request for a secret ballot is reviewed and set aside; (ii) The ATM's request for a secret ballot is remitted to the Speaker for a fresh decision; (iii) The Speaker is ordered to pay the ATM's costs of suit, including costs for two counsel.

When the Speaker of the National Assembly exercises the discretion to determine whether a motion of no confidence in the President should be conducted by open or secret ballot, she must approach the decision from a neutral starting point without imposing any onus on the requesting party. The Speaker must ask what would be the best procedure to ensure that Members exercise their oversight powers most effectively in the particular circumstances of that specific motion, considering a conspectus of reasonable and legitimate circumstances. A decision that proceeds on the basis that the requesting party bears an onus to prove the need for a secret ballot constitutes a material misunderstanding of the nature of the discretion to be exercised and amounts to a failure to exercise that discretion at all. Such a decision is irrational and reviewable. The correct approach does not presuppose a default position of either open or secret ballot - each motion requires a fresh, situation-specific determination.

The Court confirmed that the parties correctly accepted there is no onus on a requesting party to make out a case for a vote by secret ballot, and stated this concession was correct. The Court also observed that when determining whether a procedural error founds a rationality review, the error must be material to the decision arrived at - this goes to the heart of the rational connection test. The Court noted that if a decision is founded on a procedure which failed to understand the nature of the discretion to be exercised, this will be material. The judgment also referenced the Constitutional Court's observation in UDM that both open and secret ballots are constitutionally permissible, otherwise provision would not have been made for secret ballots in elections of the President, Speaker and other office-bearers.

This case is significant in South African constitutional and administrative law for several reasons: (1) It clarifies the proper approach to be taken by the Speaker when deciding whether to conduct a motion of no confidence by secret or open ballot; (2) It confirms that there is no onus on a requesting party to prove the need for a secret ballot - the Speaker must make a neutral, situation-specific assessment; (3) It demonstrates the application of rationality review to parliamentary procedure, particularly where a decision-maker misconceives the nature of their discretion; (4) It reinforces the principle established in United Democratic Movement that the voting procedure for motions of no confidence is situation-specific and requires consideration of a conspectus of circumstances; (5) It confirms that procedural errors can vitiate a decision on rationality grounds where the error is material and affects the decision-maker's understanding of their discretion; (6) The case emphasizes the importance of Members of Parliament being able to exercise oversight functions effectively, unencumbered by party loyalty when this conflicts with constitutional obligations.