IN THE CONSTITUTIONAL GOURT OF SOUTH AFRICA, Case No: CCT 80/17 Inthe matter between’ UNITED DEMOCRATIC MOVEMENT ‘Applicant and ‘SPEAKER OF THE NATIONAL ASSEMBLY & 13 OTHERS Respondents FIRST RESPONDENT'S ANSWERING AFFIDAVIT | the undersigned, BALEKA MMAKOTA MBETE do hereby make oath and say lhe folowing14 12. 13. 14, 18. | am the Speaker of the National Assombly (NA). | have been elected to this position in terms of section 62(1) to (3), read with Part A of ‘Schedule 3, of tho Constitution ofthe Republic of South Africa, 1996, (the Constitution) {am cited is these proceedings as the First Respondent. ‘am also acting herein as the nominal respondent on behalf ofthe NA, In terms of section 23 of the Powors, Prileges and Immunities of Pariiament and Provincial Legislaturas Act of 2004, My offices are situated et Parliament Street. Cape Town. ‘The facts deposed to herein are true and correct and are, except ‘here the context indicates otherwise, within my personal knowledge, Where | make submissions of a legal nature I do so on the advice of my legal representatives, which advice | accept | have read the founding affidavit of Mr Bantubonke Harrington Holomisa and respond thereto only in so far as the Applicant seeks to impugn my decisionnol to accede to the Applicant's request to have the motion of no confidence in the President of tho Republic of South Attica conducted by way of secret ballot ard characterises my conduct as unconstitutional and invalid, The failure to deal with the other allegations contained in the Applicant's founding affidavit should not be regarded as an admission thereot, On the contrary, the allegations should be regarded as having been denied I wish to state that | am personally not averse to having motion ‘of no confidence in the President being decided by secret bal | am, however, bound by the Constitution and the Rules thatthe NA hes adopted (the Rules). Accordingly, | have no authorty or eseretion to acento the ‘Applicant's request. Instead the Applicant could have and should heve acted 28 sot out in paragraph 36 below. | also wish to bring to the attention ofthis Court that when the Rules were “amended as part ofthe rules roview process and pursuant tothe decision of this Court in the Mazibuko matter (referred to in paragraph 33 footnote 6 of the Applicant's founding affidavit) proposal was made to include & provision {for a vote by secret ballot, ut Ure NA ducined lu adopt the sald proposal Inits application, the Applicant seeks, into ala, dectarations that: Pg6.1 this Court has exclusive jurisdiction to determine the application, alferatively, the Applicant ie granted direct access to this Court; 6.2 the Constitution requires that motions of no confidence in terms of ‘section 102 ofthe Constitution must be decided by secret ballot; 6.3 alternatively to paragraph 6.2 atove, the Constitution permits motions of ‘no confidence in terms of section 102 of the Constitution to be decided by secret batt, 64 the Rules permit motions of no confidence in terms of section 102 of the Constitution w be decided by secrat ballot: 85 altematively to paragraph 64 mhowe, Rules 102 to 104 ere ‘unconstitutional and invalid to the extent that they preclude secret ballots boing used for motions of confidence (sic). ‘The Applicant also seoks an order that my decision of 6 Apri! 2017 to refuse {o allow the confidence motions to be dacided by secret allot be reviewed ‘and set aside and declared unconstitutional and invalid by10, 41 ‘Tho Applicant further moves for @ direction that | make all the necessary arrangements to ensure that the motion of no confidence scheduled for 18 April 2017 is decided by secret ballot, including designating @ new date for the motion to be debated and voted on no later than 25 April 2017. To the extent set out below, | oppose this application for reasons which will, become evident inthis answering affidavit. By way of general comment, | respectfully submit that this application has no met; it does not fll within the exclusive juridicton ofthis Court does not meet the requirements for crect access; ts calculated to embrol this Court in politcal controversy in a matter thet involves violation of the principle of separation of powers and i's groundid on an assumption that the members of the NA, particularly, members ofthe Afican National Congress, are weak- kneed, timid, cowardly, unprincipled and spineless persons, which assumption am not prepared to make. ach of thage matters wil be dealt within tur, Excusive jurtsactton2 13. 1“ 18 16 17, With specie reference to this matter, eaction 167(4X) of the Conetitution stipulates thet only this Court may decide that Parliament has failed to full a constitutional obligation, The Applicant submits that |, on behalf of the NA, am obliged by the Constitution to allow fora secret ballot ona no confidence motion efter in all ‘cases or at the very least in a case such as the present. ‘The Applicant further states or Implias that | have, and therefore Patligment has, falled to ful the ssid constitutional obligation. ‘The Applicant relies on the judgment o this Cour in the matter of Economie Freedom Fighters & Others v The Speaker of the National Assembly & Others; Democratic Alliance v Speaker of the National Assembly & (Others 2016 (3) SA 580 (CC) paras [16] and [18] for the above proposition. | respectfully submit that the said judgment is not authorty forthe contended proposition. | say so for a number of reasons. Firstly, nowhere does the Constitution impose the said obligation. Section 102(2) ofthe Constitution provides that (the National Assembly, by @ vole ‘supported by a majority of ts members, passes @ vote of no confidence In the fr. 88 19, 20. President, the President and the other members of the Cabinet and any Deputy Ministers must resign”. Constitution is headed "intemal arrangements, proceedings and procedures of National Assembly”. Subsection (1) thereof provides that “The National Assembly may. (a) determine and control its intemal arrangements, proceedings and procedures; and (b) make rules and orders conceming its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.” ‘The Constitution stipulates whenever an act or proceeding has to be done ir secret or by secrot ballot. For instance, in terms of section 19(3Xa) thereof “every adult citizen has the right to vote in elections...and fo do so In secret. Furthermore, in terms of section 62(8) ofthe Constitution, the procedure set out in Part A of Schedule 3 applies to the election of the Speaker and the Deputy Speaker. In terme of section 86(2) the same procedure applies othe ‘election ofthe President. The seid procedure involves voting by secret ballot In the £a8e of the nomination of morn than ane candiclate forthe position oS2 a 24, | submit that if the Constitution required @ vote of no confidence in the President (or Cabinet) to be conducted by secret ballot, t would have cexprossly said so. A forton, the determination ofthe lawfulness of my refusal ofthe Applicant's request fora secret ballots nota matter thats within the exclusive jurisdiction of this Court. Paragraph |17] ofthe Economic Freedom Fighters case and collier eases make that clear. {A vote of no confidence in the Cabinet or the President is provided for In Rule 129 read with Rules 102 to 104. As stated in paragraph 6 above, the Rules ‘were amended on 26 May 2016 in order to comply with the Mazibuko |udgmert. ‘The Full Court of the Western Cape Division, Cape Town etectively found that the NA tad complied with the said decision. (See: the Tlouamma case referred on paragraph 35 of the Applicant's founding affidavit footnote & and ‘Annexure "UDM2" thereto.) |, accordingly, submit that the High Court nas jurisdiction to determine this Ss °o28, 21, 28. 2 20 | am advised that sections 79(4Xb) and (5), 80, 121(2Xb) and (3), 122 and 1167(4) of the Constitution set out instances where @ party can have direct Section 167(8a) provides that “national legislation or the rules of the Constitutional Court must allow @ person, when iti in the interests of justice {and with leave ofthe Constiutional Couto bring @ matter drecty © the Constitutions! Court” | am further advised that Rule 18 of the Constitutional Court Rules regulates the procedure whereby an application for direct access contemplated in section 167(6Xa) may be brought. ‘Section 169(1) of the Constitution sats out the wide constitutional jurisdiction of the High Court, save for those matters where the Constitutional Court has exclusive jurisdiction or have been assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa |lam advised that the following principles have been establiched in relation to direct applications to this Court: 90.1. this Cour, save for cases where ithas exclusive jurisdiction, ordinarily functions as an appellate court ‘302. the Court can act as @ court of first instance whore the intoreste of Justice so permit; and » Gbat 30.3. the mechanism and procedure for so doing is set out in Rule 18 of the Rules ofthis Cour, ‘The rationale forthe rule has been articulated as follows: 31.1. the applicant must provide cogent reasons (in princpl 1d practice) ‘hy it gin the interests of justice for direct access to be granted; 31.2, it should be borne in ming that there gould be Factual disputes on the Papers, necessitating the leading of evidence; 31.3. this Court does not benefit from the views of other courts having ‘concurrent jurisdiction, such views enrich this Cour’ jurisprudence, 31.4, Issues in relation to substantive law and appropriate orders to be made, are crystalised out for focused research and attention; 31.5, the issue before this Court is important and has serious ramifications for the NA's power fo reguate its own processes; an order in favour of the Applicant would intrude into the domain of legislative power, that being so, an opportunity forthe ventilation ofthese issues before lower courts is advantageous; 31.6. there must be exceptional circumstances that justify a departure from Mg the normal procedure; and