Opinionista Pierre De Vos 9 January 2018

Disagreement over interpretation is what led to two different decisions in Con Court impeachment judgment

Stripped of the (unnecessarily emotional) rhetoric in and around the case, a relatively crisp legal question animates the minority and majority decisions in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (the so-called impeachment judgment). A disagreement about the correct interpretation of section 89 of the Constitution leads the majority and minority to profoundly different conclusions about the procedure that must be followed before the National Assembly (NA) can legally vote on whether to impeach the President of South Africa.

In 2006 in Doctors for Life International v Speaker of the National Assembly and Others the majority of the Constitutional Court held that sections 59 and 72 of the Constitution required the NA and the National Council of Provinces (NCOP) to take reasonable steps to facilitate public involvement in the passing of legislation, and declared invalid challenged legislation because the NCOP had failed to take such steps when passing the legislation. The minority disagreed, in effect holding that sections 59 and 72 could not be used to invalidate legislation.

The carefully reasoned judgments in the case (there were four altogether) advanced profoundly different views about the nature of South Africa’s constitutional democracy, and the extent to which voters had a right to participate in decisions that affected their lives (apart from their uncontested right to vote in regular elections).

Judges of the highest court often disagree with one another, but – unlike in the Doctors for Life case – these disagreements are seldom based on profoundly different views about the nature of constitutional democracy. Despite the heat generated by the judgment, the disagreement in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another, is of a relatively technical nature.

The disagreement is this: does section 89 of the Constitution first require the National Assembly (NA) to establish as fact (in as unpolitical a way as is possible for a political body like the NA) that one of the requirements for impeachment exist, before it can legally vote to impeach the President, or is the decision whether the President is guilty of a serious violation of the constitution or the law or of serious misconduct nothing more than a value judgment, largely determined by the political loyalties of a majority of members of the NA?

Section 89(1) of the Constitution states that:

The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of: (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.”

The majority (in a judgment authored by Jafta J) held that the removal of the President by means of impeachment is subject to certain conditions. It must have, as its foundation, at least one of the grounds listed in section 89(1). And the impeachment itself must be supported by a two thirds majority. Crucially, the majority held:

For the impeachment process to commence, the [NA] must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the President’s removal. A removal of the President where none of those grounds is established would not be a removal contemplated in section 89(1). Equally, a process for removal of the President where none of those grounds exists would amount to a process not authorised by the section.”

The NA had to determine (much like any other fact-finding body) whether a specific requirement which allowed the NA to impeach the President was met or not. This was not a value judgment but an entirely factual question: Was there a serious violation of the Constitution or the law or was there serious misconduct on the part of the President?

It was for this reason that there could be no legally valid vote to impeach the President in the absence of the requisite factual finding. What was therefore required for impeachment was a two-stage process. First, the members of the NA had to conduct a factual enquiry to determine whether any of the criteria for impeachment listed in section 89 was present. Then the members of the NA had to exercise their political discretion and had to decide whether they would support impeachment, given the fact that the President has been found “guilty” of an impeachable “offence”.

The majority added an important caveat. It was for the NA (not the court) to draft and adopt rules that would make it clear what constituted a serious violation of the Constitution or the law, and what would constitute serious misconduct. It was also for the NA (not the court) to decide what specific mechanism should be adopted that would allow it to make such a factual finding unencumbered by party political loyalty. The majority held that the existing rules (including rules allowing the NA to appoint a – partisan – ad hoc committee) did not provide for an appropriate mechanism to make the relevant factual finding.

A cynic will immediate ask whether it would ever be possible for a profoundly political body like the NA to make an impartial factual finding about the President’s conduct. After all, all, members of the NA would have a vested interest in either finding that the President’s conduct was a serious violation of the Constitution or the law or constituted serious misconduct or that it was not. The majority addressed this problem indirectly in two ways.

First, it reminded the members of the NA that in the recent UDM secret ballot judgment, Chief Justice Mogoeng Mogoeng held that while members of the NA “assume office through nomination by political parties”, this “ought to have a limited influence on how they exercise the institutional power” of the NA. 

Where the interests of the political parties are inconsistent with the Assembly’s objectives, members must exercise the Assembly’s power for the achievement of the Assembly’s objectives. For example, members may not frustrate the realisation of ensuring a government by the people if its attainment would harm their political party.  If they were to do so, they would be using the institutional power of the Assembly for a purpose other than the one for which the power was conferred. This would be inconsistent with the Constitution.”

Second, the majority suggested that whatever mechanism the NA devised, such rules (in the words of Chief Justice Mogoeng) should not permit the majority party in the NA to use its numerical strength to frustrate the tabling and debating of impeachment motions in order to shield the President who is their leader.

The minority judgment written by Deputy Chief Justice Zondo, viewed impeachment in more political terms. In this view, section 89 requires members of the NA to make a value judgment, not only when they decide whether to vote for impeachment, but also when they decide on the pre-question: whether one of the requirements for impeachment set out in section 89 had been met or not.

In all probability there would be some members of the National Assembly who would take the view that there has been a serious violation of the Constitution whereas others would take the view that there has not been a serious violation of the Constitution….  Whether a violation is serious or not is a value judgment that a person must form in a given set of facts.”

In this view, impeachment is not that different from a motion of no confidence provided for in section – except for the fact that the consequences of impeachment (a loss of benefits) was more severe.

In his separate minority judgement, Chief Justice Mogoeng seems to suggest that it would not always be necessary to hold an inquiry or hearing to determine whether the President was “guilty” of an impeachable “offence” because members of the NA would often be able to make a factual finding (just like judges do), by looking at the evidence presented in papers before them. The Chief Justice writes:

There is a striking similarity between the determination of the existence of a ground for impeachment, and of a ground relied on for a desired court outcome….  Barring negligibly few remittals to the lower courts, this mechanism has been most effectively and impressively employed without the need to resort to any inquiry or investigation before argument in court (debate) and the decision (voting).  And at least a century of litigation history in this country has amply demonstrated that grounds on which decisions or orders are based can be properly established either through a trial or motion proceedings.”

I am not entirely convinced by this argument as it seems to assume that members of the NA (who are elected and not appointed, and are members of political parties) will make factual findings in an impartial and fair manner about a highly charged political issue relying on documents placed before them, just like most judges do. But MPs (of all parties) are profoundly partisan, and will at best be difficult for them to make impartial factual findings about a charged political question such as whether the sitting President is guilty of impeachable offences. (This is a problem also not entirely convincingly addressed by the majority judgment.)

On the face of it, the second part of the majority judgment was more invasive as it found that the NA had failed to hold the President to account following the Nkandla judgment, as was required by section 89(1). But the second part of the judgment seems to flow logically from the first. This is because when the NA considered (and voted on) the impeachment of President Zuma after the Nkandla judgment, it failed to hold the factual enquiry as required by section 89.

Without accepting that one of the listed grounds [for impeachment] existed, the Assembly could not authorise the commencement of a process, which could result in the removal of the President from office.  Moreover, it does not appear from the papers that the President was afforded the opportunity to defend himself. Without knowing whether the Assembly holds the view that the President has committed a serious violation of the Constitution, it would be difficult for him to mount an effective defence.”

The minority rejected this argument for various complicated reasons, but its view about the second part of the judgment seems to flow logically from its rejection of the two-stage approach to impeachment. As the minority does not believe section 89 requires that an objective (or at least impartial) factual finding must first determine whether the President is guilty of a serious violation of the Constitution before the NA can vote on impeachment, it is logical that it would view the order to “re-do” the section 89 impeachment according to newly devised rule as going too far.

In any event, what we have now is a Constitutional Court order for the NA to devise impeachment rules that would allow for the two-stage process (with a first impartial fact-finding leg and a second partisan political leg) and then to start an impeachment process against President Zuma in terms of these newly adopted rules. Only time will tell whether President Zuma will still be in office by the time when the new impeachment rules are finalised, and if he is, whether the NA will make a factual finding that would allow for an impeachment vote. DM

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