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3.This is because although the Constitution prescribes voting by secret ballot in the general elections and the elections of the Deputy Speaker, the Speaker and the President,it is silent on the voting procedure for their removal. 4.The decision therefore remains with the National Assembly to determine the voting procedure in conducting a motion of no confidence in terms of its constitutional powers under section 57 of the Constitution. Rules 102, 103 and 104 of the National Assembly also empower the Speaker, on behalf of the Assembly, to prescribe an open ballot or a secret ballot in a motion of no confidence in the President, though this determination is situation-specific.Factors to be taken into account:When the Speaker exercises the power to determine the appropriate voting procedure in the motion under particular circumstances, several factors would have to be taken into account. These include but are not limited to: 1.Whether the chosen voting procedure would allow Members of the National Assembly tovote according to their conscience and in the furtherance of the best interests of the people; 2.Whether the prevailing circumstances are either peaceful, or toxified and potentially hazardous; 8
3.The imperative of the Speaker’s impartiality must be consciously factored into the decision-making process; 4.The effectiveness of a motion of no confidence as an accountability and consequence-management tool must be enhanced by the chosen voting procedure; 5.The possibility of corruption or bribes in the event of a secret ballot must be considered;6.The need for the value of transparency to find expression in the passing of the motion must be taken into account; 7.The decision must be rationally connected to the purpose of a motion of no confidence and should not be made arbitrarily.Final ruling:1.For these reasons, the Court declared that the Speaker has the constitutional power to prescribe voting in a motion of no confidence in the President to be conducted by secret ballot. 2.It set aside the Speaker’s decision of 5 April 2017 to refuse prescribing a secret ballot, and remitted the UDM’s request for a fresh decision back to the Speaker for reconsideration.DEMOCRATIC ALLIANCE V THE PRESIDENT OF SOUTH AFRICA (SELIANE CASE):BACKGROUND:1.This case was heard in the Constitutional Court in 2012 and had to do with whether the appointment of Mr. Simelane as the National Director of Public Prosecutions, by the President of SA, was constitutionally valid. 2.An application was initially brought by the DA in the North Gauteng HC which held that the President’s decision to appoint Mr. Simelane was indeed invalid.3.Despite the HC’s decision, the Supreme Court of Appeal set aside the decision as it declared that it was irrational.
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Democracy, Separation of Powers, Parliament, NKANDLA CASE, UDM CASE, SILEMANE CASE, RICHARD CALLAND