Johannesburg – Chief Justice Mogoeng Mogoeng believed the majority judgment of the Constitutional Court, that the National Assembly failed to hold President Jacob Zuma to account, was a controversial matter and a case of judicial overreach.
Mogoeng said this in his minority judgment, in which he disagreed with the majority judgment, read out by Justice Chris Jafta.
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During Jafta's reading of the judgment on Friday, Mogoeng noticeably interrupted and startled Jafta as he read the judgment.
Mogoeng asked 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".
"It is just as insensitive to this doctrine to hold that impeachment grounds must always be determined by the Assembly before the debate and voting on a motion of impeachment could take place."
Mogoeng said: "This case has never been about impeachment in general. It has always been about the impeachment of President Zuma."
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 functions and 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.
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The "impeachment" application was in court in September, where opposition parties argued that the court should order Parliament to establish a fact-finding ad hoc committee that would force Zuma to answer questions about his conduct during the Nkandla scandal.
The opposition parties sought a declaratory order that the National Assembly's inaction in the face of Zuma's violations of the Constitution was unconstitutional.
They also sought an order compelling Speaker Baleka Mbete to take the necessary and appropriate steps to determine the seriousness of the president's violations.
Mogoeng said in his ruling on Friday he had "deep-seated agony and bafflement" over the majority judgment.
He said the public protector’s thorough investigation into the Nkandla matter, with the Constitutional Court upholding the remedial action, should suffice.
"Based on this documented and recorded evidential material, a real likelihood exists that a ground for impeachment might well be determined by the Assembly without the need for an enquiry," Mogoeng said.
"Without anybody suggesting that this is not the case, or this court satisfying itself otherwise, it, however, seeks to prescribe an enquiry and has an order ready to support it," he said.
The majority judgment by Jafta stated the matter fell within the exclusive jurisdiction of the Constitutional Court.
He said it was because the claims raised by the applicants concerned a failure by the National Assembly to fulfill its obligations under the provisions within the Constitution.
"Our Constitution, like many others, devolves power among the three arms of the state in all spheres. To prevent one arm or sphere from exercising powers which belong to other arms, the Constitution adopted the principle of separation of powers," he said.
Jafta said, in order to prevent the abuse of power by those who hold office, checks and balances were put in place.
Jafta found that the National Assembly failed to exercise these checks and balances.
"I conclude that the Assembly has failed to fulfill two obligations arising from the provision. To remedy this the Assembly must fulfill those obligations," he said.
Jafta’s order said that the National Assembly must make rules regulating the removal of a president, hold the president to account under those rules, and that the National Assembly and the president must pay the costs.
It means the National Assembly has 120 days from the day of the order to make the rules, and initiate a process under the new rules within 180 days from the order.
