Parliament shrugs off ATM court papers opposing vote on Phala Phala

Parliament is in recess and cannot take note of the court papers of the African Transformation Movement (ATM) in its urgent application to the Western Cape High Court for an order setting aside last week’s vote of the National Assembly against the adoption of the independent panel’s report on Phala Phala.

Parliament issued a statement on Thursday saying it noted media reports about the ATM’s legal challenge to the outcome of the National Assembly vote on the report of the independent panel chaired by former chief justice Sandile Ngcobo. The report found there might be a prima facie case that President Cyril Ramaphosa violated the constitution and his oath of office in the manner in which the theft of hundreds of thousands of dollars from his game farm was handled.

If the report had been adopted it would have set in motion an impeachment process against the country’s leader.

It was the motion by ATM president Vuyo Zungula that led to the establishment of the panel. The ATM — which is linked to the radical economic transformation faction of the ANC — is also opposing Ramaphosa’s application to the Constitutional Court to have the report declared unlawful and invalid.

Parliament’s statement said the Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 “provides that a person may not within the precincts execute or serve or tender for service any summons, subpoena or other process issued by a court without the express permission of, or in accordance with the directives of, the speaker or the chairperson or a person authorised by the speaker or the chairperson.

“Both the National Assembly and the National Council of Provinces are currently on recess, and therefore the offices of parliament are accordingly closed until January 2023. Parliament has, therefore, not been served with the papers by the ATM.

“However, parliament will respond to the papers served on the state attorneys. Application will also be made for the time frames to be amended.”

The ATM wants the notification of opposition to be filed by December 23 and for the court to hear the matter on January 25. All political parties in the National Assembly are cited as respondents and can file affidavits by January 13, according to the ATM’s court application.

The ATM brought the urgent application because it says the voting procedure in parliament was irregular. If the court agreed to the request the National Assembly would have to vote again on the report.

The party is asking the court to declare the refusal by National Assembly speaker Nosiviwe Mapisa-Nqakula to agree to a secret ballot as unconstitutional and invalid and for it to direct that a secret ballot be allowed when the vote takes place again. The vote took place by a roll call and resulted in 214 votes against and 148 in favour, after ANC MPs were  instructed by their party to vote against it.

Bad faith

ATM leader Vuyo Zungula argues in his founding affidavit that Mapisa-Nqakula did not apply the correct legal test when she refused his request for a secret ballot. Her decision was unconstitutional and taken in bad faith as it was intended “to protect the political interests of the political party of which she is a member”.

“In rejecting the ATM’s request for a closed ballot and prescribing an open ballot procedure the speaker required that there be ‘exceptional circumstances’ for her to deviate from the ‘principle of openness’,” the affidavit said.

“The speaker is wrong because the principle of openness is not the default position and therefore cannot be ‘deviated from’. All the constitutional principles of openness, transparency and accountability apply from the start. There was no onus on an MP to establish exceptional circumstances before a request for a secret ballot was agreed upon.”

The ATM requested a secret ballot on the grounds that ANC members had been threatened with disciplinary action if they voted in favour of the report.

Zungula said the speaker had exercised her powers in a manner inconsistent with judgements by the Constitutional Court and the Supreme Court of Appeal. Her decision was irrational because she was bound to consider which method of voting would give effect to the constitutional duty to hold the executive to account. The correct test was one that took account of the constitutional imperatives of accountability and openness.

The method of voting tainted the lawfulness of the proceedings and requires the report to be reconsidered.

ensorl@businesslive.co.za