The Constitutional Court today granted direct access and declared that the Speaker of the National Assembly has the constitutional power to prescribe that voting in a motion of no confidence in the President of the Republic of South Africa be conducted by secret ballot.  It set aside the Speaker’s decision of 6 April 2017, that she does not have the power to prescribe that voting in the motion of no confidence in the President be conducted by secret ballot, and ordered that the motion is remitted to the Speaker for her to make a fresh decision. Various sections of the Constitution were considered, including 42, 55, 57 and 102 in the context of the need for separation of powers.

United Democratic Movement v Speaker of the National Assembly (CCT89/17) [2017] ZACC 21 (22 June 2017) per Mogoeng CJ (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J concurring)

Excerpts from the judgment (without footnotes)

Essential context

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[9]   Accountability, responsiveness and openness[1] enjoin the President, Deputy President, Ministers and Deputy Ministers to report fully and regularly to Parliament on the execution of their obligations.[2] After all, Parliament “is elected to represent the people and to ensure government by the people under the Constitution”.[3]

[10]   It thus falls on Parliament to oversee the performance of the President and the rest of Cabinet and hold them accountable for the use of State power and the resources entrusted to them. And sight must never be lost that “all constitutional obligations must be performed diligently and without delay”.[4]  When all the regular checks and balances seem to be ineffective or a serious accountability breach is thought to have occurred, then the citizens’ best interests could at times demand a resort to the ultimate accountability-ensuring mechanisms.  Those measures range from being voted out of office by the electorate[5] to removal by Parliament through a motion of no confidence[6] or impeachment.[7]  These are crucial accountability-enhancing instruments that forever remind the President and Cabinet of the worst repercussions that could be visited upon them, for a perceived or actual mismanagement of the people’s best interests.

[11]   Whether that time has come and how exactly to employ any of these instruments is the judgement call of the same Parliament that elected the President and to which he or she accounts. Some Parliamentarians believe that that time has come and have tabled a motion of no confidence in the President.  They have themselves invited this Court to get involved and clarify the nature and extent of Parliament’s power.  Rightly so, because “[e]veryone has the right to have a dispute that can be resolved by the application of law decided in a fair public hearing before a court”.[8]

[12]   Implicit in this application is a deep-seated concern about just how effective Parliament’s constitutionally-prescribed accountability-enforcing mechanisms are. Do they ensure that there is enforcement of consequences for failure to honour core constitutional obligations or is it easy to escape consequences by reason of the inefficacy of mechanisms?  And does the Constitution read with the Rules of the National Assembly give the Speaker the power to prescribe voting by secret ballot in a motion of no confidence in the President?

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[21]   The jurisdiction of this Court is sought to be established on two alternative grounds – direct access and exclusive jurisdiction.

[22]   Section 167(6) of the Constitution provides for direct access to this Court in the following terms:

“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—

(a)        to bring a matter directly to the Constitutional Court; or

(b)        to appeal directly to the Constitutional Court from any other court.”

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[26]   All of the above led to the conclusion that a direct appeal had to be granted. As for the application for an order declaring that this Court has exclusive jurisdiction, the majority said:

“Given the outcome of the direct access application, we expressly refrain from deciding whether the requirements of section 102(2) create an obligation on the assembly within the meaning of section 167(4)(e).  Resolving that dispute must wait for another day.”[1]

[27]   We would do well to leave the resolution of the question whether this Court has exclusive jurisdiction in this matter for another day. Here too, we embrace and reiterate the observations relating to the importance of a motion of no confidence in our constitutional democracy, its primary objective as an effective consequence‑enforcement tool and the likelihood of the dispute ending up in this Court even if we were to direct that it be heard by the High Court first.

[28]   A motion of no confidence in the Head of State and Head of the Executive is a very important matter. Good governance and public interest could at times haemorrhage quite profusely if that motion were to be left lingering on for a considerable period of time.  It deserves to be prioritised for attention within a reasonable time.[2]  The relative urgency of the guidance needed by Parliament from this Court is also an important factor to take into account.  Consistent with the approach in Mazibuko in relation to an application for direct appeal, we too find it convenient to resolve the jurisdictional issue on the basis of direct access.  Based on these factors, it is in the interests of justice to grant direct access.

The nature and purpose of a motion of no confidence

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[38]   Members of Parliament have to ensure that the will or interests of the people find expression through what the State and its organs do. This is so because Parliament “is elected to represent the people and to ensure government by the people under the Constitution”.[1]  This it seeks to achieve by, among other things, passing legislation to facilitate quality service delivery to the people, appropriating budgets for discharging constitutional obligations and holding the Executive and organs of State accountable for the execution of their constitutional responsibilities.

[39]   Parliament’s scrutiny and oversight role blends well with the obligations imposed on the Executive by section 92. It is provided for in section 55 of the Constitution:

Powers of National Assembly

. . .

(2)        The National Assembly must provide for mechanisms––

(a)        to ensure that all executive organs of state in the national sphere of government are accountable to it; and

(b)        to maintain oversight of––

(i)         the exercise of national executive authority, including the implementation of legislation; and

(ii)        any organ of state.”

[40]   The National Assembly indeed has the obligation to hold Members of the Executive accountable, put effective mechanisms in place to achieve that objective and maintain oversight of their exercise of executive authority. There are parliamentary oversight and accountability mechanisms that are sufficiently notorious to be taken judicial notice of.  Some of them are calling on Ministers to: regularly account to Portfolio Committees and ad hoc Committees; and avail themselves to respond to parliamentary questions as well as other question and answer sessions during a National Assembly sitting.  It is also through the State of the Nation Address, Budget Speeches and question and answer sessions that the President and the rest of the Executive are held to account.

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[43]   A motion of no confidence constitutes a threat of the ultimate sanction the National Assembly can impose on the President and Cabinet should they fail or be perceived to have failed to carry out their constitutional obligations. It is one of the most effective accountability or consequence-enforcement tools designed to continuously remind the President and Cabinet of what could happen should regular mechanisms prove or appear to be ineffective.  This measure would ordinarily be resorted to when the people’s representatives have, in a manner of speaking, virtually given up on the President or Cabinet.  It constitutes one of the severest political consequences imaginable – a sword that hangs over the head of the President to force him or her to always do the right thing.  But, that threat will remain virtually inconsequential in the absence of an effective operationalising mechanism to give it the fatal bite, whenever necessary.

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[45]   A motion of no confidence is, in some respects, potentially more devastating than impeachment. It does not necessarily require any serious wrongdoing, though this is implied.  It may be passed by an ordinary, as opposed to a two-thirds majority of Members of the National Assembly.  Unlike an impeachment that targets only the President, a motion of no confidence does not spare the Deputy President, Ministers and Deputy Ministers of adverse consequences.  And the Constitution does not say when or on what grounds it would be fitting to seek refuge in a motion of no confidence.

[46]   As to when and why, a point could conceivably be reached where serious fault‑lines in the area of accountability, good governance and objective suitability for the highest office have since become apparent. Those concerns might not necessarily rise to the level of grounds required for impeachment.  But, the lingering expectation of the President delivering on the constitutional mandate entrusted to him or her might have become increasingly dim.

[47]   In the final analysis, the mechanism of a motion of no confidence is all about ensuring that our constitutional project is well managed; is not imperilled; the best interests of the nation enjoy priority in whatever important step is taken; and our nation is governed only by those deserving of governance responsibilities. To determine, through a motion of no confidence, the continued suitability for office of those who govern, is a crucial consequence-management or good-governance issue.  This is so because the needs of the people must never be allowed to be neglected without appropriate and most effective consequences.  So, a motion of no confidence is fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive’s performance.

[48]   When the stage is reached or a firm view is formed, by some Members of the National Assembly, that the possibility of removing the President or Cabinet from office through a motion of no confidence be explored, would it be constitutionally permissible for the Speaker, on behalf of the National Assembly, to prescribe a secret ballot as the voting procedure? On what bases may this Court conclude that the Speaker does have the power to order voting by secret ballot?

Does the Speaker have the power to prescribe a secret ballot?

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[58]   The Constitution could have provided for a vote by secret ballot or an open ballot. It did neither.  Why did the Constitution leave the procedure open?  Section 57(1) provides the answer:

“The National Assembly may—

(a)        determine and control its internal arrangements, proceedings and procedures; and

(b)        make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.”

[59]   To pass a motion of no confidence in the President requires a vote supported by a majority of National Assembly Members. Absent an expression of choice by the Constitution, the National Assembly is at large to exercise its section 57(1) powers to decide on the appropriate voting procedure in terms of which to decide the motion.  And the choice lies between an open or secret ballot.  The National Assembly therefore has the power to determine whether voting on a motion of no confidence would be by open ballot or secret ballot.  The purpose for leaving the voting procedure open could only have been for the Assembly itself to determine, in terms of its section 57 powers, what would best advance our constitutional vision or project.

[60]   Both possibilities of an open or secret ballot are constitutionally permissible. Otherwise, if Members always had to vote openly and in obedience to enforceable party instructions, provision would not have been made for a secret ballot when the President, Speaker, Chairperson of the National Council of Provinces and their Deputies are elected.[1]  And the Constitution would have made it clear that voting would always be by open ballot.

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[64]   It bears emphasis that the absence of a prior determination of the voting procedure by our Constitution for a motion of no confidence means that it neither prohibits nor prescribes an open ballot or a secret ballot. The effect of this is to leave it open to the National Assembly, when the time comes to vote on that motion, to decide on the appropriate voting procedure.  This can only reinforce the conclusion that the Assembly has the power to make that determination.  It is for it to decide on the voting procedure necessary for the efficiency and effectiveness of the institution in holding the Executive accountable.  In sum, how best and in terms of which voting procedure to hold the President accountable in the particular instance is the responsibility constitutionally-allocated to the National Assembly.

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[68]   In sum, rule 104(1) and (3) empowers the Speaker to have even a motion of no confidence in the President voted on by secret ballot. But, when a secret ballot would be appropriate, is an eventuality that has not been expressly provided for and which then falls on the Speaker to determine.  That is her judgement call to make, having due regard to what would be the best procedure to ensure that Members exercise their oversight powers most effectively.  And that is something she may “predetermine” as envisaged in rule 104(1).

[69]   Our decision that the power to prescribe the voting procedure in a motion of no confidence reposes in the Speaker, accords with the dictates of separation of powers. It affirms the functional independence of Parliament to freely exercise its section 57 powers.

The exercise of the power to determine the procedure

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[74]   The frustration or disappointment of the losing presidential hopeful and his or her supporters could conceivably have a wide range of prejudicial consequences for Members who are known to have contributed to the loss. To allow Members of the National Assembly to vote with their conscience and choose who they truly believe to be the best presidential material for our country, without any fear of reprisals, a secret ballot has been identified as the best voting mechanism.

[75]   Conversely, a Member of Parliament could be exposed to a range of reasonably foreseeable prejudicial consequences when called upon to pronounce through a vote on the President’s accountability or continued suitability for the highest office. But of course that potential risk would also depend on the motivation for the motion of no confidence.  Is it on grounds that impugn competence, faithfulness to the Republic or commitment to upholding constitutional obligations or on some fairly innocuous or less divisive or less sensitive grounds?

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[79]   Central to the freedom “to follow the dictates of personal conscience” is the oath of office. Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws.[1]

Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme.  Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.

This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.  The requirement that their names be submitted to the Electoral Commission before the elections is crucial.[2]  The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.

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[81]   Some consequences are adverse or injurious not so much to individuals, as they are to our constitutional democracy. Crass dishonesty, in the form of bribe-taking or other illegitimate methods of gaining undeserved majorities, must not be discounted from the Speaker’s decision-making process.  Anybody, including Members of Parliament or of the Judiciary anywhere in the world, could potentially be “bought”.  When that happens in a motion of no confidence, the outcome could betray the people’s best interests.  This possibility must not be lightly or naively taken out of the equation as a necessarily far removed and negligible possibility when the stakes are too high.  For, when money or oiled hands determine the voting outcome, particularly in a matter of such monumental importance, then no conscience or oath finds expression.

[82]   The correct exercise of Parliament’s powers in relation to a motion of no confidence in the President, must therefore have the effect of ensuring that the voting process is not a fear or money-inspired sham but a genuine motion for the effective enforcement of accountability. When that is so, the distant but real possibility of being removed from office for good reason would serve the original and essential purpose of encouraging public office-bearers to be accountable and fulfil their constitutional obligations.

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[84]   What then is to be done to safeguard the responsibility of Members of Parliament to vote according to their conscience when it is necessary to enforce accountability effectively and properly, without undermining the need to let them toe the party line when it is undoubtedly appropriate to do so? A way must be found to draw a line between allowing voting according to Members’ true conscience and the important responsibilities or obligations Members have to their parties, which would at times be in conflict.

[85]   The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise. It is neither for the benefit of the Speaker nor his or her party.  This power must be exercised to achieve the purpose of a motion of no confidence which is primarily about guaranteeing the effectiveness of regular mechanisms.  The purpose of that motion is also to enhance the enforcement of accountability by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction about the Executive’s performance in-between general elections.  It is fundamentally for the advancement of good governance through quality service delivery, accountability, the strengthening of our democracy and the realisation of the aspirations of the people of South Africa.  The exercise of the power to determine the voting procedure must thus always be geared at achieving the purpose for which that power exists.  The procedure in terms of which the voting right is allowed to be exercised must brighten and enhance the prospects of the purpose for which it was given being better served or advanced.

[86]   More importantly, the power that vests in the Speaker to determine the voting procedure in a motion of no confidence, belongs to the people and must thus not be exercised arbitrarily or whimsically. Nor is it open-ended and unguided.  It is exercisable subject to constraints.  The primary constraint being that it must be used for the purpose it was given to the Speaker – facilitation of the effectiveness of Parliament’s accountability mechanisms.  Other constraints include the need to allow Members to honour their constitutional obligations, regard being had to their sworn faithfulness to the Republic and irrevocable commitment to do what the Constitution and the laws require of them, for the common good of all South Africans.

[87]   The Speaker is chosen from amongst Members of the National Assembly.[1] That gives rise to the same responsibility to balance party interests with those of the people.  It is as difficult and onerous a dual responsibility as it is for Members, perhaps even more so, given the independence and impartiality the position requires.  But Parliament’s efficacy in its constitutional oversight of the Executive vitally depends on the Speaker’s proper exercise of this enormous responsibility.  The Speaker must thus ensure that his or her decision strengthens that particular tenet of our democracy and does not undermine it.

[88]   There must always be a proper and rational basis for whatever choice the Speaker makes in the exercise of the constitutional power to determine the voting procedure. Due regard must always be had to real possibilities of corruption as well as the prevailing circumstances and whether they allow Members to exercise their vote in a manner that does not expose them to illegitimate hardships.  Whether the prevailing atmosphere is generally peaceful or toxified and highly charged, is one of the important aspects of that decision-making process.


[89]   In conclusion, when approached by the UDM to have the motion of no confidence in the President voted on by secret ballot, the Speaker said that neither the Constitution nor the Rules of the National Assembly allow her to authorise a vote by secret ballot. To this extent she was mistaken.  The only real constraint that stood in her way was the Tlouamma

[90]   Our interpretation of the relevant provisions of the Constitution and the rules makes it clear that the Speaker does have the power to authorise a vote by a secret ballot in motion of no confidence proceedings against the President, in appropriate circumstances. The exercise of that power must be duly guided by the need to enable effective accountability, what is in the best interests of the people and obedience to the Constitution.