Judges at odds over impeachment
Minority of justices believe the president has been held to account over Nkandla, but it’s the majority view that counts
Chief Justice Mogoeng Mogoeng’s extraordinary interruption during the handing down of the #ZumaImpeachment judgment was a distraction from what was a fairly straightforward judgment and order from the Constitutional Court.
For those who missed it: in the week between Christmas and New Year, the Constitutional Court announced it would hand down judgment in the Economic Freedom Fighters’ (EFF’s) case about Parliament’s constitutional duty to hold President Jacob Zuma to account following the court’s Nkandla judgment.
The judgment was handed down by Justice Chris Jafta, who had penned the majority judgment. There were four judgments, he said, and he would summarise each of them.
He summarised his own majority judgment, the minority judgment of Justice Raymond Zondo, and then moved on to summarise a dissenting judgment by Chief Justice Mogoeng Mogoeng.
He was one line into it when the chief justice interrupted him, handing him some paper — a document that he wanted read into the record, said Jafta. What followed was a summary of the chief justice’s blistering dissent, including the now infamous finding that the majority decision was a “textbook case of judicial overreach”.
It was not that the chief justice had forced Jafta to read his entire dissenting judgment but it seems that the summary handed to Jafta was different to the one that Jafta had begun to read out.
The moment was dramatic, as was the language used by Mogoeng.
But, although minority and dissenting judgments are important in the long-term development of the law and they are interesting, they do not direct what is to happen, however fiery their wording.
Instead, and particularly in this case, Mogoeng’s dissent — and the riposte by Justice Johan Froneman — may be more revealing of the state of affairs at the highest court than anything else. More on this later.
The majority judgment in the case is fairly simple.
Parliament is ordered to adopt specific rules for an impeachment process “without delay”; and it must also go ahead and subject Zuma’s conduct to scrutiny to determine whether “the president has breached section 89 (1)” — the section that sets out grounds for impeachment — without delay.
The judgment holds that the Constitution requires a specific procedure, and therefore a specific set of rules, for impeachment.
Unlike a motion of no confidence, impeachment — under section 89 of the Constitution — may only happen if one of three conditions is met: a serious violation of the Constitution or the law, serious misconduct or an inability to perform the functions of office.
This means there is a step preceding an impeachment debate and vote in Parliament — a process to determine whether any of those conditions has been met. The process must give the president the opportunity to be heard, said Jafta.
This step is implicit in the wording of section 89, he said.
It is not for the court to prescribe the process, but an ad hoc committee is not good enough.
Here, Jafta is answering Zondo, who found that, when an investigation was required for impeachment, an ad hoc committee — such as the recent Eskom and SABC ad hoc committees, added Mogoeng — would be able to do the job.
Zondo found that the rules of Parliament were flexible enough to accommodate an impeachment investigation through ad hoc committees, which have strong powers to summon witnesses and compel the production of documents.
Jafta disagreed, saying ad hoc committees make decisions “by agreement among the majority of the members present”, but the size of the committees are not set out in the rules. “Nor do they require that all parties be represented,” he said.
There is a risk that an impeachment complaint would not reach the assembly, he said. He did not answer Zondo’s and Mogoeng’s criticism that there is no evidence that Parliament has ever refused to establish a subcommittee to look into impeachment or of any attempt to frustrate an impeachment motion.
“Without rules defining the entire process, it is impossible to implement section 89,” said Jafta. Go and make rules, he instructs Parliament.
It should not be too much of a problem because Parliament had already begun to draft such rules and has gone quite far in the process, he added.
It emerged — a day before the hearing in a last-minute affidavit — that there were draft rules already in circulation, but what was holding up their adoption was the very parties before the court, as they had not responded to requests that they comment on the draft.
Zondo was highly unimpressed by this: “The applicants … have not taken this court into their confidence and explained to us why they came to court before they went back to the subcommittee and put their proposals to that subcommittee. In my view the most sensible response by this court to this is to insist that the applicants go back to that subcommittee and make their proposals to it and see whether any unconstitutional obstacles are put in their way.”
But, Jafta said, whether or not opposition parties had come to