ATM also wants the high court to review and set aside the speaker’s decision, taken on 16 February and 9 March 2022, rejecting their request, and to replace it with an order granting the secret ballot.
Mapisa-Nqakula rejected ATM and the DA’s request for a closed ballot, arguing that she does not believe a closed ballot is necessary or in the interest of democracy.
In her court papers, seen by The Citizen, Mapisa-Nqakula argues that ATM’s court application is not urgent and that any urgency in their application is self-created.
The speaker also argues her decision to reject the party’s request was lawful, and that ATM spent nine days between 16 and 25 February 2022 before it decided to take her decision on legal review.
Mapisa-Nqakula said the delays in lodging the court application, which saw Parliament being given four days to file an answering affidavit to ATM’s application, were “patently unreasonable and impermissible”.
“There is no question that the ATM had the right to launch proceedings to review the speaker’s decision of 16 February 2022 immediately upon receipt of that decision. It did not do so at that stage – either urgently or at all.
“Instead, the ATM made an election. It opted instead to ask the speaker to ‘review’ her own decision. It is this election that has brought about the purported urgency of these proceedings. The ATM cannot now escape the consequences of its election.”
Mapisa-Nqakula argued that in using her discretion to decide on the secret ballot, it could not be assumed that merely because a motion of no confidence in the president is at stake, a secret ballot must follow.
“Rather, the correct position is that the speaker is empowered by Rule 104(1) and (3) of the Rules of the National Assembly to determine whether a particular motion of no confidence will be by secret ballot or open vote.
“There is no default position and the question of how voting should occur ‘falls on the Speaker to determine’”.
During last week’s meeting of the National Assembly’s programming committee, ATM’s court action came into sharp focus with MPs raising concerns about parliament’s preparedness should the high court rule in the party’s favour.
The Inkatha Freedom Party (IFP) and the United Democratic Movement (UDM) called for ATM’s motion to be postponed until the second term of Parliament resumes in April.
IFP chief whip Narend Singh raised concerns over whether the virtual platform being used by Parliament would be able to accommodate the secret ballot at the last minute.
The secretary to the National Assembly, Masibulele Xaso said the virtual platform was not able to run the secret ballot, but they were exploring ways of conducting the vote via secret ballot.
“If the decision were to be that there must be a secret ballot, the speaker would then have to give a directive on how to proceed with the matter,” he said.
Compiled by Thapelo Lekabe
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