It’s not about government policy, so why is this a case of
When does a court overreach and thus intrude into a domain exclusively reserved for the executive or the legislature? In an unusually harsh minority judgment, Chief Justice Mogoeng Mogoeng was clear that the majority of the Constitutional Court had done just that in ordering Parliament to introduce a mechanism to deal with the possible impeachment of President Jacob Zuma.
The case was, at its core, fairly simple. In its Nkandla judgment, the court had found that the president had failed to uphold, defend and respect the Constitution as the supreme law. On behalf of a unanimous court, Mogoeng had written: “The failure was manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers.”
Section 89 of the Constitution therefore becomes important. It provides that the National Assembly, by a resolution adopted by at least two thirds of its members, may remove the president from office on the grounds of, inter alia, a serious violation of the Constitution or the law.
Before the Constitutional Court it was argued that the National Assembly had failed to put in place mechanisms to hold the president accountable for his constitutional breaches as found by the court in the Nkandla case. It was accepted by all justices that the National Assembly, in terms of section 59 of the Constitution, has the power to control its internal proceedings and procedures and that it can make rules and orders concerning its mandated business.
The minority judgment written by Deputy Chief Justice Raymond Zondo provided a detailed account of the manner in which the National Assembly, through the speaker, can appoint an ad hoc committee to deal with the question of a possible case of impeachment.
He further found that, because the court had already found that the president had committed a clear breach of his constitutional obligations, there was no need for an ad hoc committee to investigate whether there had been a breach of the Constitution. That the National Assembly had then deliberated on the issue and decided by a majority that there was no basis to impeach the president was therefore the end of the matter.
Justice Chris Jafta, on behalf of the majority, found that section 89 did require a prior investigation as to whether the impugned conduct of the president constituted conduct sufficiently serious to justify impeachment. As he wrote: “Since the power to remove is institutional, the assembly must decide and facilitate the initiation of the preliminary stage. It may well be that each member of the assembly has a right to initiate the preliminary process. Even so, the assembly must facilitate steps to be taken in this regard and a process to be followed. Not only as a preliminary stage but also at the stage of actual impeachment up to the final stage of voting on whether the president should be removed from office, so as to determine whether the removal is supported by the necessary two-thirds majority.”
For this reason, Jafta held that there was an implicit obligation imposed upon the National Assembly to make rules specifically tailored for the impeachment process. Of this and the consequent order, that the National Assembly introduce such rules and apply them to the president’s conduct in respect of Nkandla, Mogeong, however, said: “This is a textbook case of judicial overreach – a constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament. The extraordinary nature and gravity of this assertion demands that substance be provided to undergird it.”
The substance offered by the chief justice is set out in a number of paragraphs best encapsulated in the following: