South Africa

Another Concourt battle looms for Zuma and Mbete

By Jillian Green 30 March 2017

Economic Freedom Fighters' leader Julius Malema has filed an application to the Constitutional Court asking it to order the Speaker of Parliament to institute impeachment or disciplinary proceedings against President Jacob Zuma. Meantime, the DA has called for a motion of no confidence in Zuma. By JILLIAN GREEN.

The Constitutional Court is once again being called on to intervene in parliamentary matters following an application by the Economic Freedom Fighters asking it to order the speaker of parliament to institute impeachment or disciplinary proceedings against President Jacob Zuma.

The application comes a day before the one year anniversary of the Concourt’s judgment into the state’s handling of the Public Protector’s report on Nkandla.

“We approach the Constitutional Court as a last resort based on the belief that Zuma’s conduct around the Nkandla matter, both inside and outside of Parliament, renders him unfit to hold the high office of President of the Republic of South Africa,” said party spokesperson, Mbuyiseni Ndlozi, adding that since the Nkandla judgment the party had “made numerous appeals and wrote several letters to the Speaker of Parliament. All have fallen on deaf ears and have been met with violence by Parliament on EFF MPs”.

The UDM and Cope are cited as second and third applicants respectively while Mbete and Zuma are cited as respondents.

In the Nkandla matter, the Concourt held that the Public Protector’s power to take appropriate remedial action was “legal and binding”.

If found that the National Assembly’s resolution based on Police Minister Nathi Nhleko’s findings exonerating the Zuma from liability, was “inconsistent with the Constitution and unlawful”. It also found that by failing to comply with the Public Protector’s order, the President failed to “uphold, defend and respect” the Constitution. Zuma was ordered to pay for the non-security upgrades to his private residence, to reprimand the ministers involved in the expenditure on Nkandla.

Thursday’s application asked the court, among other things, to declare that:

  • Mbete had failed to put all mechanisms and processes in place to hold Zuma to account for violating the Constitution for failing to implement the Public Protector’s Nkandla report;
  • Mbete failed to properly apply her mind and/or to scrutinise the President’s violation of the Constitution;
  • This failure was itself in violation of  the Constitution; and
  • Mbete convene a committee of Parliament or any other independent mechanism to conduct an investigation into the conduct of the President into whether he was guilty of an offence which would exercise the powers of Parliament in terms of S89(1) of the Constitution.

S89(1) of the Constitution indicates that a president can only be impeached by the National Assembly in Parliament over a “serious violation of the Constitution or the law” and allows for a president’s removal over a “serious misconduct” or “inability to perform the functions of office”.

Mbete and Zuma have 10 days to indicate whether they will be opposing the application. Attempts to get comment from the presidency and parliamentary spokespeople was unsuccessful.

In his affidavit, Malema argues that the application falls within the exclusive jurisdiction of the court as the crux of the application is an alleged failure by Parliament to fulfil its unique constitutional obligations to hold the President to account.

Speaking outside the court after filing the application Malema said the party had exhausted all other avenues available to bring Zuma to account.

“Bathabile (Dlamini) was called to answer, why not Zuma?” Malema asked, adding that while they understood that the court can’t order the president to step down, it can instruct parliament to do its job.

The Concourt application comes as the Democratic Alliance indicated that it intended tabling a motion of no confidence in Zuma relating to his intention to fire Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas.

“At a time when 9 million South Africans are without work and our fragile economy requires leadership and clear policy direction, President Zuma continues to play Russian Roulette with our future and our country,” said Mmusi Maimane, DA leader.

Maimane said Zuma’s “reckless” recall of Gordhan and Jonas from an international roadshow to boost investment, growth and job creation in the country had “all but eviscerated” any gains made by the pair since the president’s firing of finance minister Nhlanhla Nene.

“Zuma has threatened our economy by dangling the possibility of firing  Gordhan, and Jonas, before the country, and before the world, by using a bizarre and seemingly last minute “security report” to justify such removals. This is nothing more than an attempt at total state capture and cannot be accepted … Parliament must now fire Jacob Zuma. Only Parliament can act now – the Courts do not have the authority to remove a sitting president,” he said.

Malema said the party would support any motion that calls for no confidence in the president.

If the latest application is successful, Zuma will for the second time face the prospect of being impeached. In April 2016, the DA led an unsuccessful debate in parliament calling for his removal.

Legal experts said they were unable to say whether the Constitutional Court application had any prospects of success until they had studied the arguments  contained in the court documents. DM

Photo: South Africa’s President Jacob Zuma arrives with Speaker of Parliament Baleka Mbete to give his State of the Nation address at the opening session of Parliament in Cape Town, February 11, 2016.  REUTERS/Mike Hutchings

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