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I am subject to an order of the High Court which requires me to exercise my discretion on whether or not a secret ballot should be held on the motion of no confidence and removal of the Executive Mayor.

I therefore wish to read my decision and the reasons into the record.

I have carefully considered representations made to me on behalf of the Executive Mayor motivating a secret ballot.

I have also considered representations submitted on behalf of the Democratic Alliance (DA).

I have considered the factors which the court requires me to consider.

I have taken into account the remarks of the judge that the DA caucus was divided on whether to support a motion of no confidence, and also that the parties in the litigation do not object to a secret ballot.I have considered factors arising from the Constitutional Court judgment in UDM v Speaker, National Assembly 2017. This has included the fact that the Constitution neither prohibits nor prescribes an open ballot or a secret ballot, the importance of councillors being able to vote freely in accordance with the dictates of their personal conscience, as well as the fact that the power which the court has given me to determine the voting procedure belongs to the people and must not be exercised arbitrarily, that I have a responsibility to balance party interests with those of the people, and that there must be a proper and rational basis for my decision.

There are various factors which must be considered and weighed up in making my decision.

1. The decision about an open or secret ballot must be made to promote the purpose of the motion of no confidence. The purpose of a motion of no confidence is that councillors, representing their voters, are able to hold the Executive Mayor accountable for the performance of her duties. My decision about an open or secret ballot must be made with the objective of ensuring that councillors are able to do that effectively.

2. Councillors must be able to vote without feeling that they are being forced or intimidated or unduly influenced into voting a particular way. They must be able to vote without fear of disapproval by others, or of reprisals against them.

3. The reasons for the motion of no confidence include complaints about the Executive Mayor’s competence, that she has mismanaged certain matters and that there is a loss of confidence in her leadership. These are potentially divisive and sensitive complaints. The atmosphere in which the vote is happening may be more highly-charged than calm and neutral. The reasons for this include the personal nature of the complaints against the Mayor and this week’s High Court litigation on this issue. I have given this careful consideration. Councillors may be reluctant to express their position (whether for or against) openly, considering the personal complaints and the tense atmosphere.

4. At the same time, openness and transparency is very important. Voters are entitled to know how their public representatives vote on matters in Council, including sensitive and difficult matters. This is a basic ingredient of councillors’ accountability to their voters.

5. I have considered the fact that the DA is not instructing its councillors on how to vote on the motion of no confidence. Its position is that each councillor must vote according to his or her own conscience on the matter. There will be no consequences for councillors however they may choose to vote. The DA made this clear in the court papers filed in the Executive Mayor’s application to the High Court. Also, the agreement on this point between the Executive Mayor and the DA is part of the court order which was made by the judge. There is therefore no question or doubt about this aspect any longer.

6. Also regarding the DA: There are different views within the DA about the motion of no confidence. When the DA caucus was debating submitting a motion, a number of DA councillors voted against it (59 against, 84 for). There is thus significant support both for and against the motion and this lessens the risk of individual councillors feeling intimidated about voting in any particular way. I have also considered whether any such fears outweigh the public interest, and considerations of accountability, democracy, openness and transparency.

7. Each councillor must perform the functions of their office in good faith; honestly; and must act in the best interests of the municipality. These duties are part of the Code of Conduct for Councillors. Performing these duties when it comes to a sensitive and difficult vote may require courage from councillors, but then that is what is required of them. Given the DA’s ‘free vote’ position and given that there appear to be a good number of DA councillors who do not support the motion, councillors who wish to vote against the motion are unlikely to feel themselves exposed to any particular risk to their positions.

8. My assessment is that a secret ballot is not necessary to ensure that councillors are able to vote on the motion according to their consciences. The DA’s position that its members are to vote according to their consciences, coupled with the significant differences in the DA both for and against the vote, take away any meaningful risk of intimidation if the vote is open.

9. Openness and transparency favour an open vote and I consider that in this matter the electorate is entitled to see how its representatives are carrying out this important obligation.

10. Having considered all these factors, and on balance, I am of the view that an open ballot in the present circumstances will better serve the enforcement of accountability.

For these reasons my decision is that the ballot will be an open ballot, and we will vote by means of the electronic voting system after the debate.

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