On Monday, judges of the Constitutional Court heard the case brought forward by opposition parties for a parliamentary motion of no confidence against President Jacob Zuma to be carried out through a secret ballot.
After arguments were heard in sessions that lasted until almost 8pm on Monday, Chief Justice Mogoeng Mogoeng said that he was thankful to the lawyers for allowing the justices time to understand the case. This follows after several such motions against the president flopped in 2016. The largely cited reason for this is perceived bullying tactics of the ruling party, the African National Congress, which has the power to expel members from the party at any point. Expulsion would have a real and material impact on the members careers and the lives of themselves and their families who depend on them. The proposal of a secret ballot is to provide relief for ANC MP's who are perceived to be bullied by the party and are considered vulnerable.
Addressing Mogoeng, advocate Dali Mpofu, who was arguing on behalf of the United Democratic Movement (UDM), said "the real thing that all South Africans want to know Chief Justice, with all due respect, is very simple: 'does the president continue to enjoy the confidence of the majority of the members of parliament. that's all. If he does, well then he does... "
Parliament's speaker Baleka Mbete, with whom the decision sits, is reluctant on the matter. All relevant parties have acknowledged that there is nothing unconstitutional about a secret ballot, but at the same time, the speaker also legally has her rights to exercise her own discretion.
According to eNCA's senior crime and justice reporter Karyn Maughan, the real question that the judges need to consider in their ruling is whether they order her to initiate a secret ballot or leave Mbete to be within her rights to choose, and expect her to do the right thing.
The judges need to consider very carefully, she says, in how they articulate their ruling "in terms of the relief that they may or may not grant, because they'd need to be able to do so without overstepping the boundaries of separation of powers.
"They'd have to be very circumspect around the clamp on the judiciary that has been heating up in recent times", she said.
According to Maughan, the judges would also need to consider if they make a blanket ruling for all motions of no confidence to be held through a secret ballot, or if only an exception should be made with President Jacob Zuma.
The judges ultimately sit with a difficult decision in whether they order the speaker to hold a secret ballot motion of no confidence and risk criticism for overstepping their place, or if they entrust the speaker to use her discretion wisely.