Ruling hastens Zuma end-game
Publish date: 08 January 2018
Issue Number: 4372
Diary: Legalbrief Today
Category: Constitutional
A disastrous December may hasten resolution of the political end-game for President Jacob Zuma, notes Legalbrief. His fate may be decided as early as this week when the new ANC national executive council meets in East London. The Constitutional Court brought down the curtain on a series of adverse judgments for the President when it ruled on 29 December that the National Assembly had failed to hold Zuma to account over the Nkandla matter. A divided court found that the lawmakers failed in their constitutional duty to put in place mechanisms to hold the President accountable. It ruled: ‘The failure of the National Assembly to make rules regulating the removal of a President in terms of section 89(1) of the Constitution constitutes a violation of section 89.’ In the majority judgment, notes a News24 report, Justice Chris Jafta said Parliament must comply with section 237 and make rules to allow for the impeachment of Zuma ‘without delay’. ‘The failure by the National Assembly to determine whether the President had breached section 89(1)(a) or (b) of the Constitution is inconsistent with this section and section 42(3) of the Constitution,’ Jafta said. The application was brought by the EFF, the UDM and COPE against the Speaker of the National Assembly, and it sought an order compelling the House to carry out its constitutional duty to scrutinise Zuma's conduct. This was in relation to a previous ruling by the court that found Zuma failed to uphold the Constitution with regards to the Public Protector’s remedial actions for the upgrades to his Nkandla homestead. However, the majority judgment was severely criticised, not least by Chief Justice Mogoeng Mogoeng who said it was a case of judicial overreach. During Jafta's reading of the judgment, Mogoeng noticeably interrupted and startled Jafta, asking that his minority judgment be read out by Jafta for the record. Mogoeng called the majority judgment a ‘textbook case of judicial overreach’ and was ‘at odds with the dictates of separation of powers’.
Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47
Mogoeng’s view is described as ‘misplaced and unfortunate’ in the majority judgment. A BusinessLIVE report notes the extreme difference of views on the judgment was notable in the four judgments penned. In Mogoeng’s dissenting judgment, he described the judgment as a ‘constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament’. Jafta said the divergence of views raised was quite normal. ‘But what is unprecedented is the suggestion that the construction of the section embraced by the majority here constitutes ‘a textbook case of judicial overreach’. The suggestion is misplaced and unfortunate,’ Jafta's judgment read. Six of the apex court’s justices concurred with the majority judgment. The majority, noting current rules of the National Assembly do not cater for impeachment proceedings, held that any process for the removing the President must be preceded by a preliminary inquiry, during which the National Assembly must determine if the listed grounds for impeachment exist. Without rules defining the impeachment process set out in section 89, ‘it is impossible’ to implement it, Jafta wrote.
Three justices, including Mogoeng, concurred with Deputy Chief Justice Ray Zondo’s dissenting judgment, in which he said that the National Assembly had not failed to put in place mechanisms that could be used to hold the President to account. A BusinessLIVE report notes the majority judgment found that an ad hoc committee would not be an effective vehicle to deal with the matter, while Zondo's judgment said the majority judgment failed to explain why they accepted that the DA was correct on this, while the acting Speaker in Parliament, as well as the EFF, UDM and COPE, all said it could be suitable for a section 89 procedure. Mogoeng, besides supporting Zondo’s dissenting judgment, wrote the separate dissenting judgment, which he felt was necessary given the ‘extraordinary nature and gravity of this assertion’, that it is judicial over-reach. He said it is ‘at odds with the dictates of separation of powers and context-sensitive realities to prescribe to the National Assembly to always hold an inquiry, and to never rely only on readily available documented or recorded evidential material, to determine the existence of a ground of impeachment.'
Justice Johan Froneman, who concurred with the majority judgment, also penned a separate judgment, which was concurred with by six other justices, including Jafta himself, to address Mogoeng’s own dissenting judgment, as he said it should not be left unanswered. Froneman said there is nothing wrong in substantive debate being robust, ‘but to attach a label to the opposing view does nothing to further the debate’, notes the BusinessLIVE report. He added he did not agree with the reasoning of Mogoeng and Zondo in their judgments, but said he did not believe the outcome was due to anything but ‘a serious attempt to grapple with the important constitutional issue at hand’. He said the majority judgment does nothing more than interpret section 89 of the Constitution and direct the National Assembly to act in accordance to the Constitution. ‘It attempts to provide the National Assembly with guidance on the tools necessary to enable it to fulfil its constitutional duty, to hold the President to account in the direst of situations. It does not seek to tell the National Assembly how to use those tools,’ Froneman wrote. He added that whether the order the majority judgment achieves its aim ‘is for history to determine’.
The judgment was described as a real indictment of the National Assembly by Lawson Naidoo, of the Council for the Advancement of the South African Constitution (Casac). ‘This is a real indictment of the National Assembly and they will now have to go back and get it right,’ he is quoted as saying in a News24 report. A President can only be impeached if it is found that he has acted in serious violation of the Constitution. The Constitution, however, does not determine what constitutes a ‘serious violation’ and Parliament will first have to determine this. ‘What is likely to happen is that Parliament’s rules committee will convene to decide what the correct process is to determine this,’ Naidoo said. ‘If it is found that Zuma has seriously violated the Constitution, then the Speaker will have to institute impeachment proceedings.’ Should the National Assembly decide to proceed with an impeachment process under section 89 of the Constitution‚ it still requires a two-thirds vote by Members of Parliament to impeach Zuma for him to leave office. If he is impeached, he loses all his presidential benefits, including his pension and security detail. ‘An impeachment is a punitive measure of which the implications are much more detailed and severe than any of the other options that allow for the removal of a president,’ Naidoo added. ‘It is the last resort.’
The EFF is looking forward to its date with Zuma, whom it describes as a ‘constitutional delinquent'. ‘We look forward to the National Assembly reconvening very soon to actually develop the necessary rules and hold the President accountable,’ EFF general secretary Godrich Gardee is quotes as saying in a News24 report. ‘The constitutional delinquent, Mr Zuma, in no time will be scrutinised, will be brought before Parliament to be (held) accountable, because his own political party has actually failed to hold him accountable, and we can't wait (another) day longer,’ said Gardee. ‘We need to be in Parliament in no less than 30 days before the State of the Nation Address of (8 February) 2018,’ he said. The EFF envisages a format for impeachment that includes Zuma giving evidence at an inquiry akin to the long-running SABC hearings, and that witnesses also be called. Gardee also expressed concern over Mogoeng's apparent ‘irritation’ during the sitting, and his call for his own minority judgment to be read into the record in full. 'We consider that as an abuse of power,’ Gardee said. DA leader Mmusi Maimane said the majority judgment was a ‘consequence of the ANC capturing Parliament and turning it into a lapdog of the executive for the sole purpose of consistently protecting Zuma and his corrupt acolytes at all costs. Parliament must earnestly apply itself to the question of whether Baleka Mbete is still fit to hold office as Speaker of the National Assembly in light of the damning judgments against her,’ he said. ‘It is now the task of Parliament to ensure that the rules governing impeachment do not fall victim to another farcical ANC process in which majoritarian tactics are used to bully the Rules Committee into devising rules designed to absolve Jacob Zuma.'
The EFF attack on the Chief Justice has been described as an over-reaction. Lawson Naidoo is quoted by TimesLIVE as saying: ‘The EFF has blown this out of proportion. Chief Justice Mogoeng Mogoeng was certainly within his rights to have his opinion expressed accurately. He is entitled to have his conclusions properly recorded. He has right to express a view and in this case it was a minority view.’ However, leader of the EFF Julius Malema took to twitter to criticise Mogoeng. Malema tweeted: ‘CJ can disagree anyhow he wants but to show disrespect to a fellow Justice on the Bench, especially during the reading of judgment, is unacceptable. The independence of judges include that no one can tell them how to write their judgments but we saw the opposite today.’ Another constitutional expert, Advocate Paul Hoffman SC, also defended the Chief Justice, saying he had done nothing wrong. ‘Minority judgments help to develop the law and the Constitution. The approach of the Chief Justice is not currently binding as he is bound by the majority, but he does bring the doctrine of the separation of powers into sharp focus in relation to matters of this nature. The doctrine is part of our law and its application can be tricky, depending on the circumstances and the court’s interpretation of the applicability of the doctrine in any given case,’ he is quoted as saying in a Weekend Argus report.
Speaker Baleka Mbete was quick to point out the court had not made any adverse findings against her. It found against the entire Parliament for not implementing section 89 of the Constitution, she claimed in a statement recorded in Weekend Argus. ‘The court has thus ordered that the Rules of the Assembly be amended without delay to comply with Section 237 of the Constitution, which instructs that all constitutional obligations be performed diligently and without delay. The National Assembly’s Rules Committee had already initiated a process, as part of its overhaul of rules, to outline a procedure to be followed in implementing section 89 of the Constitution,’ Mbete said. She said Parliament would ensure the finalisation of the Assembly’s rules, in line with the court’s order. And she added: ‘We note and agree with the strong reservation and caution underscored by both the Chief Justice and the Deputy Chief Justice in the minority judgment regarding encroachment of the judiciary into the internal functioning of the national legislature. Parliament, however, respects the majority judgment and will comply fully with it.’ A City Press report says the subcommittee dealing with the review is scheduled to meet on Thursday and Friday. A notice inviting relevant MPs to the meeting was issued via SMS last week.
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