CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 35/24
In the matter between:
ECONOMIC FREEDOM FIGHTERS First Applicant
AFRICAN TRANSFORMATION MOVEMENT Second Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
NATIONAL ASSEMBLY Second Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Third Respondent
AFRICAN NATIONAL CONGRESS Fourth Respondent
ALL POLITICAL PARTIES REPRESENTED
IN THE NATIONAL ASSEMBLY Fifth to Sixteenth Respondents
Neutral citation: Economic Freedom Fighters and Another v Speaker of the
National Assembly and Others [2026] ZACC 17
Coram: Maya CJ, Madlanga ADCJ, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and
Tshiqi J
Judgments: Maya CJ (first judgment): [8] to [174]
Kollapen J (second judgment): [175] to [301]
Majiedt J (third judgment): [302] to [387]
Heard on: 26 November 2024
Decided on: 8 May 2026
Summary: Section 89 of the Constitution — Rules of the National Assembly
— prima facie findings — accountability — transparency —
majoritarianism
ORDER
The following order is made:
1. This Court has exclusive jurisdiction to hear the application with respect
to the challenge to rule 129I of the Ninth Edition of the Rules of the
National Assembly (NA Rules).
2. It is declared that rule 129I is inconsistent with the Constitution, invalid
and set aside.
3. Pending any amendment, rule 129I shall read as follows (with the words
struck out being severed and the underlined words being inserted into that
rule):
“Rule 129I Consideration and referral of panel report
(1) Once the panel has reported the Speaker must schedule the report
for consideration by the Assembly, with due urgency, given the
programme of the Assembly inform the Assembly of the report.
(2) The President must be informed of the scheduling and any decision
on provided with a copy of the report forthwith.
(3) In the event the Assembly panel resolves concludes that a
Section 89(1) enquiry be proceeded with sufficient evidence exists
as contemplated in Rule 129G, the matter must be referred to the
Impeachment Committee established by this rule (or by the
National Assembly Rules) for that purpose.
THE COURT
(4) In the event the panel concludes that sufficient evidence does not
exist as contemplated in Rule 129G, the Speaker must schedule the
report for consideration by the Assembly; and in the event the
Assembly nonetheless resolves that a Section 89(1) enquiry be
proceeded with, the matter must be referred to the Impeachment
Committee established by this rule (or by the National Assembly
Rules) for that purpose.”
4. The severance and reading -in in paragraph 3 of this order shall apply
subject to any amendment by the National Assembly.
5. Pending any amendment of the NA Rules, to the extent that any of the
other NA Rules are, by implication, affected by the reading -in in
paragraph 3 of this order, those rules shall be read consistently with
paragraph 3 of this order mutatis mutandis.
6. It is declared that the vote of the National Assembly taken on
13 December 2022, declining to refer the Report of the Independent Panel
to an Impeachment Committee as envisaged in the NA Rules is
inconsistent with the Constitution, invalid and set aside.
7. The Report of the Independent Panel is referred to the Impeachment
Committee established in terms of the NA Rules.
8. The first to fourth respondents are ordered to pay the costs of the first
applicant, including costs of two counsel where applicable.
JUDGMENT
THE COURT:
[1] In this application, the Economic Freedom Fighters (EFF) and the African
Transformation Movement (ATM) challenge the constitutional validity of rule 129I of
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the Ninth Edition of the Rules of the National Assembly (NA Rules) and the National
Assembly’s vote on 13 December 2022 (NA vote) to not refer the Independent Panel’s
(Panel) Report1 to the Impeachment Committee. There are three judgments.
[2] The first judgment is written by Maya CJ, with Madlanga ADCJ, Rogers J and
Theron J concurring. It finds that th is Court enjoys exclusive jurisdiction over the
challenge to the validity of rule 129I as well as the related challenge to the validity of
the NA vote. It also determines that the challenges are not moot and that the delay in
bringing the challenge to the NA vote can be overlooked.
[3] The first judgment holds that rule 129I constitutes a failure by the Nati onal
Assembly to fulfil its constitutional obligations under section 89(1) of the Constitution.
It consequently invalidates and sets aside rule 129I as inconsistent with the
Constitution. Further, the first judgment holds that the NA vote amounts to a failure by
the National Assembly to fulfil its constitutional obligations. On this basis, the first
judgment would invalidate and set aside the NA vote as inconsistent with the
Constitution.
[4] The second judgment is written by Kollapen J, with Mathopo J, Seegobin AJ and
Tshiqi J concurring. It agrees with the first judgment, albeit for different reasons, that
this Court’s exclusive jurisdiction is engaged in respect of the challenge to the validity
of rule 129I. However, it finds that the rule is constit utional. It further concludes that
this Court does not have exclusive jurisdiction over the NA vote and that direct access
should not be granted in respect of this challenge.
[5] The third judgment is written by Majiedt J, with Mhlantla J and Tolmay AJ
concurring. That judgment agrees with the first judgment that this Court has exclusive
jurisdiction over the challenge to the validity of rule 129I. It further finds that the rule
jurisdiction over the challenge to the validity of rule 129I. It further finds that the rule
is unconstitutional, but for the reasons it states. Consequently, it concludes that the
1 Report of the Section 89 Independent Panel Appointed to Conduct a Preliminary Enquiry on the Motion
Proposing a Section 89 Enquiry (30 November 2022) (Report).
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NA vote taken under rule 129I is also invalid and that the Report should be referred to
the Impeachment Committee to be established in terms of the NA Rules. In all other
respects, the third judgment agrees with the reasoning and conclusion of t he second
judgment.
[6] This Court therefore—
(a) unanimously finds that it has exclusive jurisdiction in respect of the
challenge to the validity of rule 129I;
(b) by a majority, finds that it does not have exclusive jurisdiction in respect
of the challenge to the NA vote;
(c) by a majority , concludes that rule 129I is inconsistent with the
Constitution and invalid;
(d) by a majority , concludes that the NA vote is inconsistent with the
Constitution and invalid; and
(e) by a majority , concludes that the Report must be referred to the
Impeachment Committee.
[7] This Court makes the following order:
1. This Court has exclusive jurisdiction to hear the application with respect
to the challenge to rule 129I of the Ninth Edition of the Rules o f the
National Assembly (NA Rules).
2. It is declared that rule 129I is inconsistent with the Constitution, invalid
and set aside.
3. Pending any amendment, rule 129I shall read as follows (with the words
struck out being severed and the underlined words being inserted into that
rule):
“Rule 129I Consideration and referral of panel report
(1) Once the panel has reported the Speaker must schedule the report
for consideration by the Assembly, with due urgency, given the
programme of the Assembly inform the Assembly of the report.
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(2) The President must be informed of the scheduling and any decision
on provided with a copy of the report forthwith.
(3) In the event the Assembly panel resolves concludes that a
Section 89(1) enquiry be proceeded with sufficient evidence exists
as contemplated in Rule 129G, the matter must be referred to the
Impeachment Committee established by this rule (or by the
National Assembly Rules) for that purpose.
(4) In the event the panel concludes that sufficient evidence does not
exist as contemplated in Rule 129G, the Speaker must schedule the
report for consideration by the Assembly; and in the event the
Assembly nonetheless resolves that a Section 89(1) enquiry be
proceeded with, the matter must be referred to the Impeachment
Committee established by this rule (or by the National Assembly
Rules) for that purpose.”
4. The severance and reading -in in paragraph 3 of this order shall apply
subject to any amendment by the National Assembly.
5. Pending any amendment of the NA Rules, to th e extent that any of the
other NA Rules are, by implication, affected by the reading -in in
paragraph 3 of this order, those rules shall be read consistently with
paragraph 3 of this order mutatis mutandis.
6. It is declared that the vote of the National As sembly taken on
13 December 2022, declining to refer the Report of the Independent Panel
to an Impeachment Committee as envisaged in the NA Rules is
inconsistent with the Constitution, invalid and set aside.
7. The Report of the Independent Panel is referr ed to the Impeachment
Committee established in terms of the NA Rules.
8. The first to fourth respondents are ordered to pay the costs of the first
applicant, including costs of two counsel where applicable.
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MAYA CJ (Madlanga ADCJ, Rogers J and Theron J concurring):
Introduction
[8] At the outset, I must take full responsibility for the delay in producing this
judgment concerning an extremely difficult matter of great national importance. I
tender my sincere apolog ies to the parties, my Colleagues and fellow South Africans
for the inconvenience it has caused.
[9] This is yet another matter in which this Court’s intervention is sought to resolve
complaints raised by political parties represented in the National Assembly that the
latter has failed to hold the President of the country accountable, and that a rule it
devised to hold the President accountable is constitutionally defective. Similar
complaints were placed before this Court in EFF I2 and EFF II.3
[10] In this instance, the first applicant, the EFF, a registered political party
represented in the National Assembly, has invoked this Court’s exclusive jurisdiction
and, thus, approached this Court directly in terms of section 167(4)(e) of the
Constitution.4 In the main, it challenges the decision of the National Assembly, taken
on 13 December 2022 , to not adopt the Report and refer it to the Impeachment
Committee, and it seeks to have that decision declared irrational and unlawful. In that
Report, the Panel essentially found that the President of the Republic of South Africa,
Mr Matamela Cyril Ramaphosa (President), prima facie, may have violated the
Constitution and the law , or committed serious misconduct. The EFF further, or
2 Economic Freedom Fighters v Speaker , National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC) ; 2016 (5)
BCLR 618 (CC).
3 Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47; 2018 (2) SA 571 (CC); 2018
(3) BCLR 259 (CC).
4 Section 167(4)(e) of the Constitution provides:
“(4) Only the Constitutional Court may—
. . .
(e) decide that Parliament or the President has failed to fulfil a constitutional
. . .
(e) decide that Parliament or the President has failed to fulfil a constitutional
obligation.”
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alternatively, seeks a declaratory order that rule 129I5 of the NA Rules is inconsistent
with the Constitution and is thus invalid.
[11] After the EFF launched its application, the ATM, which is also a political party
represented in the National Assembly, successfully brought an intervention application
and was consequently joined as the second applicant in the matter. The Speaker of the
National Assembly (Speaker); the National Assembly; the President; and the African
National Congress (ANC), another registered political party represented in the National
Assembly, are cited in the proceedings as the first, second, third and fourth respondents
respectively, and they oppose the application. The Speaker is cited in her nominal
capacity as the representative of the National Assembly6 (and I shall refer to her and the
National Assembly collectively as Parliament). The rest of the respondents, the fifth to
the sixteenth respondents, are political parties represented in the National Assembly,
and do not oppose the application . No substantive relief is sought against th e latter
respondents or the President, who are cited merely as interested parties.
5 Rule 129I provides:
“(1) Once the panel has reported the Speaker must schedule the report for consideration by
the [National] Assembly, with due urgency, given the programme of the [National]
Assembly.
(2) The President must be informed of the scheduling and any decision on the report.
(3) In the event the [National] Assembly resolves that a section 89(1) inquiry be proceeded
with, the matter must be referred to the Impeachment Committee established by this
rule for that purpose.”
6 Section 23 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004
provides:
“(1) In any civil proceedings against Parliament or a House or committee, the State Liability
Act, 1957 (Act 20 of 1957), applies, with the necessary changes.
Act, 1957 (Act 20 of 1957), applies, with the necessary changes.
(2) For the purposes of subsection (1), where appropriate, a reference in the State Liability
Act, 1957, to the Minister of a department must, where the proceedings are against—
(a) Parliament or a House, be construed as a reference to the Speaker or the
Chairperson, or to both the Speaker and the Chairperson, as the case requires;
or
(b) a committee, be construed as a reference to the chairperson of the committee.”
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Background
[12] This matter has its genesis in a burglary that occurred on 9 February 2020 at the
President’s private residence at the Pha la Phala Wildlife Game Farm (Phala Phala),
during which foreign currency was stolen. The circumstances surrounding the source,
storage and subsequent handling of that currency later gave rise to public controversy,
criminal complaints and, ultimately, par liamentary proceedings in terms of
section 89(1) of the Constitution.
[13] On 1 June 2022, Mr Arthur Fraser, the former National Commissioner for the
Department of Correctional Services, issued a media statement announcing that he had
laid criminal charges aga inst the President and other parties. According to Mr Fraser,
the stolen foreign currency, which he estimated between 4 million USD and
8 million USD, was illegally brought to South Africa by the President’s advisor,
Mr Bejani Chauke, who collected it during trips he undertook on the President’s behalf
in countries such as Saudi Arabia, Egypt, Morocco and Equatorial Guinea.
[14] On Mr Fraser’s account, the money was not declared to the South African
Revenue Service (SARS) or the South African Reserve Bank (SAR B). It was initially
hidden in a couch in the President’s home at Hyde Park in Johannesburg, and then
transferred to the couch at Phala Phala . This was done with the assistance of the head
of the Presidential Protection Unit of the South African Police S ervice (SAPS) ,
Major General Walther Rhoode (General Rhoode), with the full knowledge and
acquiescence of the President. In Mr Fraser’s view, the fact that the President had large,
undeclared sums of foreign currency hidden in his furniture at his private residence was
prima facie proof of money laundering and was in breach of the law. Thus, he implored
SAPS to investigate the conduct of the President and establish the origins of these large
sums of foreign currency. He also alleged that the President had sought assistance from
sums of foreign currency. He also alleged that the President had sought assistance from
his Namibian counterpart, President Hage Geingob, in the arrest of the suspected
mastermind of the theft of the money, who was allegedly hiding in Namibia.
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[15] The President denied Mr Fraser’s allegations. He insisted that the money was
the proceeds of a cash sale of 20 buffalo made on Christmas Day in 2019 to a Sudanese
businessman, Mr Mustafa Mohamed Ibrahim Hazim , and was far less than Mr Fraser
stated. According to him, the money was kept in a safe in an office at Phala Phala and,
on his instructions, would be banked on the return of Phala Phala’s general manager,
Mr Hendrik von Wielligh, who was on leave, and the sale transaction was processed to
finality after the festive season. No tax invoice had been generated and the buffalo had
not been collected. However, the Phala Phala lodge manager,
Mr Dumisani Sylvester Ndlovu, who was going home for the holidays, was
uncomfortable about leaving the money in the safe to which several staff members had
access. He decided to “store [it] below cushions of a sofa” in a rarely used spare
bedroom in the President’s residence until his return, as he thought no one would break
into the President’s house.
[16] On 18 July 2022, the President of the ATM, Mr Vuyolwethu Zungula, submitted
a substantive notice of motion to the Speaker in terms of section 89(1) of the
Constitution7 and rules 129A to 129 Q of the NA Rules . He requested the
National Assembly to initiate an inquiry8 into the removal of the President from his
office on the allegations that he had committed a serious violation of the Constitution
and the law, and serious misconduct.
[17] The motion set out four charges in terms of rule 129A.9 It stated that the
President had violated—
7 Section 89(1) provides:
“The National Assembly, by a resolution adopted with a supporting vote of at least two -thirds
of its [M]embers, 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.”
(b) serious misconduct; or
(c) inability to perform the functions of office.”
8 The NA Rules use the terms “inquiry” and “enquiry” interchangeably and inconsistently. For the sake of
consistency and clarity, this judgment uses the term “inquiry” throughout.
9 Rule 129A provides:
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(a) section 96(2)(a), read with section 83(b) of the Constitution , which
prohibits Members of the Cabinet and Deputy Ministers from undertaking
any other paid work, in that the President had publicly declared himself a
farmer in the cattle and game business who buys and sells animals;
(b) section 34(1) of the Prevention and Combating of Corrupt Activities Act10
(PRECCA), read with the South African Police Service Amendment
Act,11 which places a duty on persons to report corrupt transactions to a
police official in the Directorate for Priority Crime Investigation. This
was so because the President had failed to report to the police the
housebreaking and theft of foreign currency amounting, according to him,
to 580 000 USD that had been concealed in a couch at Phala Phala, and
instead reported the matter to General Rhoode;
(c) section 96(2)(b) of the Constitution , in terms of which Members of the
Cabinet and Deputy Ministers may not expose themselves to any situation
involving the risk of a conflict between their official responsibilities and
private interests, because General Rhoode had no authority to deal with
security issues at Phala Phala and was given unlawful directions by the
President whose life was not threatened by the burglary; and
“(1) Any Member of the [National] Assembly may, by way of a substantive notice of
motion in terms of Rule 124(6), initiate proceedings for a Section 89 inquiry, provided
that—
(a) the motion must be limited to a clearly formulated and substantiated charge
on the grounds specified in Section 89, which must prima facie show that the
President:
(i) committed a serious violation of the Constitution or law;
(ii) committed a serious misconduct; or
(iii) suffers from an inability to perform the functions of office;
(b) all evidence relied upon in support of the motion must be attached to the
motion;
(c) the charge must relate to an action or conduct perf ormed by the President in
motion;
(c) the charge must relate to an action or conduct perf ormed by the President in
person; and
(d) the motion is consistent with the Constitution, the law and these rules.”
10 12 of 2004.
11 10 of 2012.
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(d) section 96(2)(b) of t he Constitution, in terms of which Members of the
Cabinet and Deputy Ministers may not act in a way that is inconsistent
with their office , because his unlawful instruction to General Rhoode
showed dishonesty and constituted misconduct and unlawfulness, and the
President had failed to uphold , defend and respect the Constitution as
required of him by section 83(b) of the Constitution.
[18] On 14 September 2022, the Speaker appointed the Panel12 comprising retired
Chief Justice Sandile Ngcobo, retired Judge Thokozile Masipa and M s Mahlape
Sello SC, a practising advocate, 13 and, on 19 October 2022, formally referred the
motion to the Panel to conduct a preliminary inquiry in terms of rule 129C.14
[19] The Panel conducted an i nquiry and submitted its Report in terms of rule 129G
on 30 November 2022. 15 A summary of the facts gleaned from that comprehensive
12 The Speaker made the appointment in terms of rule 129E.
13 Associate Professor Richard Calland, who was also appointed, withdrew from the Panel.
14 Rule 129C provides:
“(1) When the motion is in order, the Speaker must immediately refer the motion, and any
supporting documentation provided by the [M]ember, to the independent panel
established for the purposes of considering preliminary Section 89 matters.
(2) The Speaker must inform the [National] Assembly and the President of such referral
without delay.”
15 Rule 129G provides:
“(1) The panel—
(a) must be independent and subject only to the Constituti on, the law and these
rules, which it must apply impartially and without fear, favour or prejudice;
(b) must consider any preliminary inquiry relating to a motion proposing a
Section 89 inquiry, referred to it by the Speaker, and must make a
recommendation to the Speaker, within 30 days, whether sufficient evidence
exists to show that the President—
(i) committed a serious violation of the Constitution or law;
(i) committed a serious violation of the Constitution or law;
(ii) committed a serious misconduct; or
(iii) suffers from an inability to perform the functions of office; and
(c) in considering the matter—
(i) may, in its sole discretion, afford any [M]ember an opportunity to
place relevant written or recorded information before it within a
specific timeframe;
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document is that the incident occurred during the President’s absence from Phala Phala,
which sells Ankole cattle and wild animals to local and foreign customers who pay cash
or by money transfer. The burglary occurred on 9 February 2020. Upon learning of the
incident, the President reported it to General Rhoode, who established an investigating
team comprising Sergeant Hlulani Rekhoto, Mr Trevor Fredericks (a social worker)
and, reportedly, a National Prosecution Authority investigator, Mr Terrence Joubert.
There is no re cord of a report of the case at the Bel a-Bela SAPS station , in whose
jurisdiction Phala Phala is situated.
[20] The Panel dealt with the matter on probabilities and found that there were
“troubling unsatisfactory features in the explanation of the source of the foreign
currency given by the President” , that the information he presented “on the storage of
the money [was] vague and [left] unsettling gaps ” and that, on the probabilities , the
money was stored in the leather couch described by one of the suspects subsequently
arrested in connection with the matter “with the full knowledge and approval of the
President . . . who did not express surprise at being told that the money had not been
kept in the safe”.
[21] The Panel expressed a number of concerns, including—
(a) that there was no evidence as to how the money came into the country and
the exact amount that was stolen;
(ii) must provide the President immediately with copie s of all
information available to the panel relating to the inquiry;
(iii) must provide the President with a reasonable opportunity to respond,
in writing, to all relevant allegations against him or her;
(iv) must not hold an oral hearing and must limit it s inquiry to the
relevant written and recorded information placed before it by
Members in terms of this rule; and
(v) must in its report include any findings, including the reasons for such
(v) must in its report include any findings, including the reasons for such
findings, upon which its recommendation is based and any minority
view of any panellist must be contained in its report.
(2) The panel may determine its own working arrangements strictly within the parameters
of the procedures provided for in this rule.”
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(b) the SARB investigation strongly suggested that there were no records of
the money entering the country or being reported as having been received;
(c) the fact that other than his name, there were no other available particulars
of Mr Hazim, such as his contact details and passport number;
(d) Mr Hazim had, for two and a half years , not collected the 20 buffalo he
allegedly bought;
(e) instead of keeping the money in the safe until the next banking day it was
hidden in a couch for over a month;
(f) the theft was neither reported to the SAPS for investigation as an ordinary
crime nor reported under section 34(1) of PRECCA , but was
surreptitiously investigated by the team established by General Rhoode,
which traced the suspect to Namibia and asked the Namibian Police
officials that the matter be “handled with discretion” because of the
“sensitivity of the matter and the envisaged fall out it [would] create in
South Africa”;
(g) the Pre sident became involved in the investigation by “[seeking]
assistance in apprehending the concerned suspect ” from his Namibian
counterpart;
(h) information placed before the Panel suggested that more than
580 000 USD was stolen; and
(i) suspects were arrested, interrogated and co -operated with the
investigating team, but no one was charged amid accusations of torture
and bribery of the suspects, who were allegedly each paid R150 000 to
buy their silence.
[22] In the Panel’s view, these were weighty considerations that left it in substantial
doubt as to whether the stolen foreign currency was the proceeds of a sale. It found that
the information placed before it, prima facie, established that—
(a) there was a deliberate intention not to investigate the commission of the
crimes committed at Phala Phala openly;
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(b) the misconduct based on violations of the provisions of section 96(2)(b)
of the Constituti on and the violation of section 34(1) of PRECCA were
committed to keep the investigation a secret;
(c) the request to the Namibian police to “handle the matter with discretion”
confirmed the latter intention;
(d) the President abused his p osition as Head of State by having the matter
investigated as it was , and seeking the assistance of the Namibian
President to apprehend a suspect; and
(e) there was more foreign currency concealed in the couch than the amount
reflected in the acknowledgement of receipt that Mr Ndlovu gave to
Mr Hazim and that was annexed to the Report.
[23] The Panel ’s ultimate conclusion was that the information placed before it
disclosed, prima faci e, that the President may have committed: (a) a serious violation
of section 96(2)(a) of the Constitution; (b) a serious violation of section 34(1) of
PRECCA; (c) serious misconduct in violating section 96(2)(b) of the Constitution by
acting in a way that is inconsistent with his office; and (d) serious misconduct in that he
violated section 96(2)(b) by exposing himself to a situation involving a conflict between
his official responsibilities and his private business. He thus had a case to answer.
[24] The Panel also recorded that , at the time of its investigation, other institutions
such as the Financial Surveillance Department of the SARB, which administers and
investigates contraventions of the Exchange Control Regulations, S ARS and the
Public Protector were also investigating th e matter , and that it was unaware of the
progress of those investigations when it released its Report.
[25] On 5 December 2022, the President launched an application in this Court for the
review and setting aside of the Report on the basis that the Panel had m isconstrued its
mandate, acted on information provided by parties who had no knowledge of the facts
mandate, acted on information provided by parties who had no knowledge of the facts
and failed to determine whether he had acted in bad faith. On 13 December 2022, the
Report came before the National Assembly for consideration and voting on the question
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whether to take the matter forward and refer it to the Impeachment Committee. The
National Assembly voted by a majority of 214 to 1 49 against proceeding with t he
inquiry under section 89(1) of the Constitution. As a result, the matter was not referred
to the Impeachment Committee. Save for five of its members, the ANC, as the majority
political party at the time, voted against the motion.
[26] Thereafter, on 10 January 2023, the EFF sought direct access to this Court for
the review and setting aside of the NA vote, albeit on grounds different to those that
have been advanced in these proceedings.16 On 1 March 2023, this Court dismissed the
review applications of the President and the EFF. It held that the President neither made
out a case for exclusive jurisdiction nor direct access, and that the EFF also failed to
establish a case for direct access. All was quiet for about a year until the EFF launched
the present application on 13 February 2024, with a request for its expedited hearing,
before the general elections scheduled for 29 May 2024.
Relief sought
[27] The EFF contends that this application concerns the National Assembly’s failure
to hold the Executive to account by: (a) acting irrationally in blocking the further
investigation of a prima facie case against the President despite the objective findings
of the Panel; and (b) failing to properly consider the content of the Report by effectively
setting aside the Panel’s conclusions without establishing a factual or legal basis upon
which to do so. In e ssence, it c hallenges the resolution of the National Assembly
declining to establish and mandate an Impeachment Committee as irrational an d
unlawful, in breach of various provisions of the Constitution . It also challenges
rule 129I as a breach of the National Assembly’s constitutional obligation under
section 89 of the Constitution to put in place an effective mechanism to hold the
16 In that matter, CCT 03/23, which was dismissed for lack of urgency, the EFF sought to review, set aside and
declare unconstitutional and invalid certain conduct of the Speaker. The issues were whether the Speaker was
entitled to call a vote on the adoption of the Report and, if so, whether she was correct to conduct the vote by open
ballot.
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President accountable in terms of that section. 17 Accordingly, the EFF seeks orders
which may be summarised under four main classes.
[28] Firstly, in prayer one of the EFF’s notice of motion, it seeks a declarator that this
application falls within the exclusive jurisdiction of this Court , in terms of
section 167(4)(e), owing to Parliament’s failure to uphold its constitutional obligations.
In the second prayer, it seeks to have the NA vote declared irrational. In the third and
fourth prayers, it seeks further or alternative declarators that the National Assembly’s
failure and vote infringe, amongst others, sections 1(c) and (d); 42(3); 48; 55(2)(a) and
(b)(i); 57(1)(b); 92(2); and 96(1), (2)(b) and (2)(c) of the Constitution.
[29] Secondly, in the fifth prayer , the EFF seeks substitution ary relief that the NA
vote be replaced with a decision adopting the Report. In the alternative, a referral of
the matter back to the National Assembly to vote on the Report de novo (afresh) is
sought.
[30] Thirdly, in the sixth and seventh prayers, the EFF challenges the constitutionality
of rule 129I and seeks a declarator that it is inconsistent with the Constitution , as it
allows the National Ass embly to vote against a possible referral to the I mpeachment
Committee despite a finding of a prima facie case against a sitting President by the
Panel; alternatively, because the rule is impermissibly vague. The EFF seeks an
amendment of rule 129I to provide for the automatic referral of a prima facie finding to
an Impeachment Committee to conduct a full investigation so as to give effect to the
constitutional provisions listed in the third prayer. Alternatively, it seeks an amendment
providing suitable guidelines as to how the discretion of the National Assembly is to be
exercised in order to prevent political interference preceding the commencement of
impeachment proceedings. The EFF seeks a suspension of the declaration of invalidity
impeachment proceedings. The EFF seeks a suspension of the declaration of invalidity
17 The EFF characterises the rule as amounting to a failure by the National Assembly to fulfil its (implicit)
section 89 constitutional obligation in so far as that rule permits the National Assembly to decli ne to establish a
committee of i nquiry under section 89 (an Impeachment Committee in the language of the NA Rules) even in
instances where the Panel finds that a prima facie case for impeachment exists.
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of the rule for a period of 12 months to allow the National Assembly to amend the rule
as requested.
[31] Lastly, t he EFF prays for costs on the basis of the Biowatch18 principle, and
further and/or alternative relief in terms of section 172(1)(b) of the Constitution.
[32] The President, supported by the ANC, opposes the application on the bases
that—
(a) it is , in truth and in fact , a judicial review, which was unreasonably
delayed with no explanation and no request for condonation;
(b) it is not subject to this Court’s exclusive jurisdiction;
(c) no case has been made out for direct access, as this is a rationality review
which should have been instituted in the High Court;
(d) the NA vote was rational and is not revi ewable, as it was merely not to
proceed with the matter and did not have an enduring legal effect;
(e) the Panel had no evidence before it and misunderstood its mandate, which
was to determine whether sufficient evidence exist ed to warrant an
impeachment process , and not whether the information before it
established, prima facie , that the President has a case to answer , as it
found, and the Report is fundamentally flawed by reason of various
misdirections;
(f) this Court should not substitute its decision for that of the National
Assembly because this would violate the separation of powers doctrine,
as section 89 of the Constitution confers the power to remove the
President only on the National Assembly and there are no exceptional
circumstances justifying a court to step into its shoes; and
(g) the attack against rule 129I is ill -founded because it is politically
motivated, the Panel’s mandate was confined by the motion and the rule
18 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) at paras 22-5.
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does permit the National Assembly to decide whether to proceed with an
impeachment inquiry.
[33] Parliament concedes that the substantive relief sought by the EFF falls within
this Court’s exclusive jurisdiction, but it disputes the EFF’s contention that rule 129I is
unconstitutional. It also argues that , because of the EFF’s unreasonable and
unexplained delay in launching the application, conducting a section 89 inquiry before
the Impeachment Committee has become legally impossible and that the matter is
accordingly moot.
Issues
[34] The core issues before this Court are—
(a) whether this Court’s exclusive jurisdiction under section 167(4) of the
Constitution is engaged and, if not, whether the EFF competently sought
and should be granted direct access as envisaged in section 167(6) of the
Constitution;
(b) whether procedural issues prevent this Court from entertaining the merits;
(c) if this Court determines that it should entertain the merits of this matter—
(i) whether rule 129I is consistent with the Constitution;
(ii) whether the NA vote is consistent with the Constitution; and
(d) a just and equitable remedy.
[35] I turn to deal with these issues.
Exclusive jurisdiction
[36] The EFF argues that th is Court’s exclusive jurisdiction is engaged on the basis
that Parliament has failed to fulfil its constitutional oblig ations to put in place an
effective mechanism to process impeachment motions against the President, and to hold
the President accountable in terms of section 89 of the Constitution.
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[37] Section 167(4)(e) of the Constitution permits only this Court to determine
whether Parliament or the President has failed to fulfil a constitutional obligation. This
Court cautioned, in Doctors for Life,19 that this provision must be construed narrowly
and in a manner that does not trench on the powers of the Supreme Court of Appeal and
the High Court to make orders concerning the constitutional validity of a n Act of
Parliament, a provincial Act or any conduct of the President.20 Care must be taken not
to unduly deprive other courts of their constitutional jurisdiction even if pleadings allege
unequivocally that the President or Parliament has failed to fulfil constitutional
obligations. A mere allegation that Parliament or the Pr esident has failed to fulfil a
constitutional obligation is insufficient.21
[38] Although this Court is ordinarily slow to intrude into the functional domain of
Parliament, particularly where matters of political judgement and majority
decision-making are involved, where the complaint is that Parliament has failed to fulfil
a specific constitutional obligation, the Constitution itself requires judicial intervention
by this Court alone. The purpose of granting this Court exclusive jurisdiction over
defined matters is to preserve comity between the Judiciary and other branches of state,
such that only the apex court will intrude into the domain of other branches in disputes
implicating “sensitive areas of separation of powers” and “crucial political
question[s]”.22 The closer a dispute is to the sensitive area of separation of powers and
to crucial political question s, the more likely it is that the issues will fall within
section 167(4).23 It should be noted, however, that “the mere fact that a matter is or
may become politically fraught does not of itself mean that only this Court has
jurisdiction to deal with it. More is needed.”24
19 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC);
2006 (12) BCLR 1399 (CC).
20 Id at para 15. They are empowered to do so under section 172(2)(a) of the Constitution.
21 EFF I above n 2 at para 17.
22 Doctors for Life above n 19 at paras 23-4.
23 Id at para 24.
24 Women’s Legal Centre Trust v President of the Republic of South Africa [2009] ZACC 20; 2009 (6) SA 94
(CC) (Women’s Legal Centre I) at para 15.
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[39] In Women’s Legal Centre I, the trigger to this Court’s exclusive jurisdiction was
said to be dependent on “the nature of the obligation, whether its content can be clearly
ascertained, whether it is stated unambiguously in the Constitution, how its content is
determined, and whether it is capacity-defining or power-conferring”.25
[40] In EFF I, the necessary interpretive exercise in relation to section 167(4)(e) was
described as follows:
“First, it must be established that a constitutional obligation that rests on the President
or Parliament is the one that allegedly has not been fulfilled. Second, that obligation
must be closely examined to determine whether it is of the kind envisaged by
section 167(4)(e). . . . An alleged breach of a constitutional obligation must relate to
an obligation that is specifically imposed on the President or Parliament. An obligation
shared with other organs of state will always fail the section 167(4)(e) test.”26
[41] In sum, therefore, in determining whether this Court’s exclusive jurisdiction
under section 167(4)(e) is triggered—
(a) the constitutional obligation at issue must be one specifically imposed on
Parliament or the President;27
(b) the words “fulfil a constitutional obligation” must be given a narrow
meaning to preserve the constitutional allocation of jurisdiction;28 and
(c) the provisions must be interpreted contextually and purposively , bearing
in mind that this Court alone is entrusted with resolving disputes that have
crucial and sensitive political implications.29
25 Id.
26 EFF I above n 2 at paras 16 and 18; see also Doctors for Life above n 19 at para 19.
27 EFF I id at para 16 and Women’s Legal Centre I above n 24 at paras 16, 20 and 23.
28 President of the Republic of South Africa v South African Rugby Football Union [1998] ZACC 21; 1999 (2) SA
14 (CC); 1999 (2) BCLR 175 (CC) (SARFU I) at para 25.
29 EFF I above n 2 at para 19.
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[42] Two questions must be answered in determining whether this Court’s exclusive
jurisdiction is engaged in terms of section 167(4)(e). First is whether a party has made
out a case in its pleadings before this Court to engage its exclusive jurisdiction. Only
if the party has a case on the pleadings does the second question arise: whether the
obligations referred to are of the kind contemplated in section 167(4)(e).30
Exclusive jurisdiction – the pleaded case
[43] The EFF pleads that the essence of its application is the failure of Parliament to
uphold and carry out its constitutional obligation to hold the President accountable . It
attacks both the constitutionality of rule 129I and the lawfulness of the NA vote not to
refer the Report to the Impeachment Committee on the basis that they violate the
accountability provisions in the Constitution. Though describing the application as one
for declaratory relief, the EFF places reliance on rationality, which is a legality review
ground, and has sought relief which is couched in the language of a legality review.
[44] The EFF’s pleaded case is not a model of clarity. However, in Gcaba,31 this
Court held that jurisdiction should be determined by considering “not only the formal
terminology of the notice of motion, but also the contents of the supporting affidavits”.32
And later, in Mbatha,33 this Court said that an examination of the pleadings is required
to determine “the legal basis of the claim under which the applicant has chosen to invoke
the court’s competence ”.34 There is, therefore, a duty to analyse the EFF’s founding
papers to understand the nature of the challenge it advances and determine whether the
shoddy framing of its challenge is fatal to its case.
30 Id at para 16.
31 Gcaba v Minister for Safety and Security [2009] ZACC 26; [2009] 12 BLLR 1145 (CC) ; 2010 (1) BCLR 35
(CC); 2010 (1) SA 238 (CC); (2010) 31 ILJ 296 (CC).
32 Id at para 75.
(CC); 2010 (1) SA 238 (CC); (2010) 31 ILJ 296 (CC).
32 Id at para 75.
33 Mbatha v University of Zululand [2013] ZACC 43; 2014 (2) BCLR 123 (CC); [2014] 4 BLLR 307 (CC); (2014)
35 ILJ 349 (CC).
34 Id at para 160 (dissenting judgment of Jafta J), referencing Gcaba above n 31 at para 75.
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[45] The EFF’s pleaded case is replete with allegations of failures by the National
Assembly to fulfil its constitutional obligations to hold the Execut ive to account . It
submits that the current structure of rule 129I defeats the purpose of section 89 of the
Constitution to hold the President accountable by permitting the National Assembly to
block the process before it reaches the Impeachment Committee. This, it argues, makes
it impossible to reach the investigative stage if the political party to which the President
belongs holds a majority and the President continues to enjoy the support of that party.
It also submits that the failure to refer the R eport to the Impeachment Committee
constituted a failure to hold the President accountable. Properly understood, the EFF’s
case is that rule 129I and the NA vote are unconstitutional because they permit the
National Assembly to evade its constitutional ob ligation to hold the President
accountable.
Exclusive jurisdiction – the National Assembly’s obligations
[46] The next question is whether the obligations identified by the EFF fall within
those contempla ted by section 167(4)(e) of the Constitution. 35 The Constitution
imposes clear and specific obligations on the National Assembly to ensure executive
accountability. Section 1(d) entrenches accountability as a foundational value of our
constitutional order, and section 42(3) imports that value into the National Assembly’s
role of scrutinising and overseeing executive action .36 Section 55(2) then enjoins the
National Assembly to put in place “mechanisms ” to maintain oversight of the exercise
of national executive authority (that is, to ensure accountability).37 The means through
35 EFF I above n 2 at para 16.
36 Section 42(3) provides:
“The National Assembly is elected to represent the people and to ensure government by the
“The National Assembly is elected to represent the people and to ensure government by the
people under the Constitut ion. It does this by choosing the President, by providing a national
forum for public consideration of issues, by passing legislation and by scrutinizing and
overseeing executive action.”
37 Section 55(2) mandates the National Assembly to provide for mechanisms—
“(a) to ensure that all executive organs of state in the national sphere of government are
accountable to it; and
(b) to maintain oversight of—
(i) the exercise of national executive authority, including the implementation of
legislation; and
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which these mechanisms are given effect, as this Court in EFF II stated,38 are the
NA Rules, adopted pursuant to section 57 of the Constitution.39
[47] Accountability obligations are also incorporated into section 89(1) of the
Constitution. That might appear contrived because section 89(1), on its express terms,
does no more than empower the National Assembly to remove the President from office
if one of the listed grounds exists:
“(1) The National Assembly, by a resolution adopted with a supporting vote of at
least two-thirds of its [M]embers, 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.”
[48] Measured solely by its express terms, the section discloses no constitutional
obligations at all. If anything, the use of the word “may” suggests that the exercise of
(ii) any organ of state.”
38 EFF II above n 3 at paras 182 and 196.
39 Section 57 provides:
“(1) The National Assembly may—
(a) determine and control its internal arrangements, proceedings and procedures;
and
(b) make rules and orders concerning its business , with due regard to
representative and participatory democracy, accountability, transparency and
public involvement.
(2) The rules and orders of the National Assembly must provide for—
(a) the establishment, composition, powers, functions, procedures and duration
of its committees;
(b) the participation in the proceedings of the [National] Assembly and its
committees of minority parties represented in the [National] Assembly, in a
manner consistent with democracy;
(c) financial and administrative assistanc e to each party represented in the
[National] Assembly in proportion to its representation, to enable the party
and its leader to perform their functions in the [National] Assembly
effectively; and
and its leader to perform their functions in the [National] Assembly
effectively; and
(d) the recognition of the leader of the largest oppositio n party in the [National]
Assembly as the Leader of the Opposition.”
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the power is entirely optional, and that the section is no source of any obligations at all.
Such a conclusion would be fallacious and at odds with the values on which our
constitutional order is founded, the full scheme of the Constitution as well as this
Court’s precedents.
[49] In the first place, t he word “may” does no t always imply the existence of a
discretion.40 As a default, “may” empowers but is otherwise neutral on the existence of
discretion. Furthermore, section 89(1) only uses the word “may” in relation to the
removal of the President – the final decision in the impeachment process. Only the
removal itself is cast as permissive and discretionary. No other aspect of the section is
qualified by the “may” discretion.
[50] This was confirmed by this Court in EFF II, in which it was held that the ultimate
decision on removal is discretionary in nature:
“[S]ection 89(1) does not oblige the [National] Assembly to remove the President from
office, even where one or more of the listed grounds are established. On the contrary,
the [National] Assembly retains a discretionary power to remove the President.”41
40 See South African Human Rights Commission v Standard Bank of South Africa Ltd [2022] ZACC 43; 2023 (3)
SA 36 (CC); 2023 (3) BCLR 296 (CC) (SAHRC) at paras 24-9. There, this Court considered the question whether
the High Court is obliged to entertain or is “at liberty not to entertain matters falling within its jurisdiction”. The
case in repudiation of the obligation and in favour of the High Court’s alleged liberty relied largely on th e word
“may” in the sections conferring jurisdiction on the High Court (section 169(1)), the Supreme Court of Appeal
(section 168(3)) and the Constitutional Court (section 167(3)), the argument being that this afforded these courts
a discretion. This Cour t observed that “at the centre of [the SAHRC’s] proposition was the idea that the word
‘may’ tells us that the section is permissive: the High Court ‘may’, not ‘must’”. This Court rejected that
proposition, holding that “[t]here is no discretionary power to decline the assumption of jurisdiction over a matter
within the jurisdiction of a court”. In the Court’s view , those sections, despite using the word “may”, were far
more neutral: serving “to confer a power”. They were “open ended” in that while they did not necessarily imply
either a discretion or an obligation, they are capable of comfortably co -existing with an obligation requiring the
High Court to “entertain matters falling within its jurisdiction” . The same is true for section 89(1)’s use of the
word “may”, which is not entirely permissive. As in SAHRC, where this Court pointed to the provisions in which
the High Court’s empowering provision was situated, and the logic underlying those sections, in concluding that,
by default, the High Court was duty -bound to adjudicate claims brought before it, the scheme, the structure and
purpose of section 89(1) are most relevant. As clarified by this Court’s jurisprudence, despite the section’s use of
the word “may”, its strictures have both obligatory and permissive dimensions.
41 EFF II above n 3 at para 203.
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[51] The use of the word “may” in section 89(1) thus grants the National Assembly a
wide, discretionary power limited to the removal of the President if certain grounds
exist. Does that mean that section 89 creates no obligations for the National Assembly?
The answer is no. This Court’s jurisprudence makes clear that permissive language can,
in context, confer a power coupled with a duty.
[52] In Van Rooyen,42 it was held that “may” in section 13(3)(aA) of the Magistrates
Act43 imposes an obligation on the Minister to act.44 In Premier, Gauteng v Democratic
Alliance,45 this Court confirmed that section 139(1) of the Constitution confers not mere
discretion but a duty to intervene when municipalities failed to fulfil their obligations.46
Likewise, in Saidi,47 this Court held that Refugee Reception Officer s were obliged to
extend permits pending determination of refugee status, despite the use of the word
“may”.48 Most recently, in Zuma,49 this Court reaffirmed that “may” can, on proper
construction, be a power coupl ed with a duty. 50 Read in this light, the word “may” in
section 89(1) can exist quite comfortably alongside obligations. 51 It cannot be
concluded that the National Assembly is free of obligations under section 89.
[53] If the text is solely what must be considered, there is minimal textual foundation,
if any, f or the conclusions that section 89(1) is incapable of founding any obligations
and that its matrix is entirely permissive. We must look to the purpose and context of
42 Van Rooyen v The State [2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC) (Van Rooyen).
43 90 of 1993.
44 Van Rooyen above n 42 at paras 178-84.
45 Premier, Gauteng v Democratic Alliance [2021] ZACC 34; 2021 (12) BCLR 1406 (CC); 2022 (1) SA 16 (CC).
46 Id at para 59.
47 Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC).
48 Id at paras 16-17.
48 Id at paras 16-17.
49 Zuma v President of the Republic of South Africa [2025] ZACC 21; 2025 (12) BCLR 1428 (CC).
50 Id at para 30.
51 See also Joseph v City of Johannesburg [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) at
paras 72-3, construing “may” in a particular legislative provision as conferring a power coupled with the duty to
exercise it when the requisite circumstances are present.
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the provision to understand its role in the constitutional order ,52 since, as is explained
below, the National Assembly’s power is accompanied by a duty to exercise it
responsibly when the circumstances contemplated by section 89(1) arise.
[54] The introduction of our Constitution brought the institution of an interlocking
scheme of checks and balances which, framed by founding values and augmented by “a
higher duty to respect the law”, 53 compels the state in all its forms to “do right,
and . . . do it properly”.54
[55] The National Assembly’s powe rs and its obligation to hold the Executive
accountable are exercised and fulfilled through a suite of checks and balances, with
some of the “regular or normal ones”55 being the following:
“[C]alling on Ministers to: regularly account to Portfolio Committe es and ad hoc [as
needed] Committees; and avail themselves to respond to parliamentary questions as
well as other question and answer sessions during a National Assembly sitting. It is
also through the State of the Nation Address, Budget Speeches and question and answer
sessions that the President and the rest of the Executive are held to account.”56
[56] But, as further observed by the Court in UDM v Speaker, not all such “regular or
normal” checks and balances are appropriate or effective mechanisms in all instances
and there may come a time when the y are not, or appear not to be , effective.57 When
52 See Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12 ; 2007 (6) SA 199
(CC); 2007 (10) BCLR 1027 (CC) at para 51. See also City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal [2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) at paras 49 -52,
observing that the approach to and canons of legal interpretation are the same for the Constitution and st atutes.
53 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC);
2019 (6) BCLR 661 (CC) (Buffalo City) at paras 60-2.
54 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute [2014] ZACC 6; 2014
(3) SA 481 (CC); 2014 (5) BCLR 547 (CC) at para 82.
55 United Democratic Movement v Speaker, National Assembly [2017] ZACC 21; 2017 (5) SA 300 (CC); 2017
(8) BCLR 106 (CC) (UDM v Speaker) at paras 40-1.
56 Id.
57 Id at para 41.
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“regular or normal” mechanisms are ineffectual under the circumstances, or a “serious”
breach is “thought to have occurred”,58 then—
“the citizens’ best interests could at times demand a resort to the ultimate
accountability-ensuring mechanisms. Those measures range from being voted out of
office by the electorate to removal by Parliament through a motion of no confidence or
impeachment.”59
[57] Section 89(1) and secti on 102 have been described as “tools” for fulfilling the
National Assembly’s overarching constitutional obligation of holding “the [M]embers
of the [E]xecutive accountable”60 and its specific obligation of “holding the President
to account”.61
[58] Section 102 too does not mention the value or obligation of accountability by
name. Yet, since Mazibuko v Sisulu,62 this Court has linked section 102 to the duty to
uphold accountability. In that decision, this Court said:
“A motion of no confidence in the President is a vital tool to advance our democratic
hygiene. It affords the [National] Assembly a vital power and duty to scrutinise and
oversee executive action.”63 (Emphasis added.)
[59] And, in UDM v Speaker , a unanimous Court made explicit mention of the
obligation to hold the Executive to account under section 102:
“Although a motion of no confidence may be invoked in instances that are unrelated to
the purpose of holding the President to account, it is a potent tool towards the
achievement of that purpose. In th at context, it is inextricably connected to the
58 Id at para 10.
59 Id.
60 Id at para 40.
61 EFF II above n 3 at para 134, referencing UDM v Speaker above n 55.
62 Mazibuko N.O. v Sisulu N.O. [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC).
63 Id at para 43.
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foundational values of accountability and responsiveness to the needs of the people. It
is a mechanism at the disposal of the National Assembly to resort to, whenever
necessary, for the enhancement of the effectiveness and efficiency of its constitutional
obligation to hold the Executive accountable and oversee the performance of its
constitutional duties.”64
[60] Likewise, section 89(1) is inextricably linked – even more so – to the
foundational value of accountability and the related constitutional obligations. Unlike
section 102 motions of no confidence , which can be proceeded with for any reason, 65
section 89(1) is of application where there is “serious” 66 concern about the President
and “applies where there is a serious violation of the Constitution or the law, serious
misconduct or an inability to perform the functions of the office”.67 The process of such
impeachment targets the incumbent of that high office only, not the Executive in whole
or part. 68 Only section 89(1) is so explicitly specific as to address serious concerns
about the President. Section 89(1) is thus a potent tool in the hands of the Members of
the National Assembly for fulfilling their overarching constitutional accountability
obligations.69
[61] Flowing from these provisions of the Constitution , the National Assembly has
three overarching accountability obligations , which were summarised by this Court in
UDM v Speaker as follows:
64 UDM v Speaker above n 55 at para 32.
65 Id at paras 45-6. There, this Court noted:
“The Constitution does not say when or on what grounds it would be fitting to seek refuge in a
motion of no confidence.
As to when and why, a point could conceivably be reached where serious fault-lines in the area
of accountability, good governance and objective suitability for the highest office have since
become apparent. Those concerns might not necessarily rise to the level of grounds required
become apparent. Those concerns might not necessarily rise to the level of grounds required
for impeachment. But, the lingering expectation of the President delivering on the constitutional
mandate entrusted to him or her might have become increasingly dim.”
66 Id at para 10.
67 Id at para 42.
68 Id at para 45.
69 Id at para 40.
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“The National Assembly indeed has the obligation to hold Members of the Executive
accountable, put effective mechanisms in place to achieve that objective and maintain
oversight of their exercise of executive authority.”70
[62] The challenge of the EFF in this case implicates the first two of the National
Assembly’s overarching accountability obligations: t he obligation to “put effective
mechanisms in place” and the obligation to “hold [M]embers of the Executive
accountable”.71
[63] The National Assembly bears an obligation to put in place “effective
mechanisms” to hold Members of the Executive accountable . The Constitution does
not specify the mode of or thresholds for decision -making by National Assembly
structures or mechanisms (e.g., committees), or in specific processes. This rule-making
authority still involves a substantial measure of discretion as to procedure, mode and
mechanism, even though it is constrained by the implied structure for impeachment
processes in section 89: a first stage involving a preliminary inquiry during which the
National Assembly determines whether a listed ground exist s, and , where a listed
ground exists, a second voting stage on the question of whether the President should be
removed. As this Court put it:
“The form which this preliminary inquiry may take depends entirely upon the
[National] Assembly. It may be an investigation or some other form of an inquiry. It
is also up to the [National] Assembly to decide whether the President must be afforded
a hearing at the preliminary stage.”72
70 Id.
71 Id. See also para 12, where this Court recorded:
“Implicit in this application is a deep -seated concern about just how effective Parliament’s
constitutionally prescribed accountability-enforcing mechanisms are. Do they ensure that there
is enforcement of consequences for failure to honour core constitutional obligations or is it easy
to escape consequences by reason of the inefficacy of mechanisms?”
In EFF II above n 3 at para 130, the majority stated that the obligation on the National Assembly was alleged to
flow from “various provisions of the Constitution” and concerned whether the National Assembly “failed to put
in place mechanisms and processes for holding the Pr esident accountable in terms of secti on 89 of the
Constitution”.
72 EFF II id at para 180.
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[64] This Court, in EFF II, concluded that, although section 89(1) does not expressly
prescribe that mechanisms be established for the impeachment process , the provision
“implicitly imposes an obligation on the [National] Assembly to make rules specially
tailored for an impeachment process contemplated in that section”.73 So, despite being
silent itself, section 89(1) carries an implied obligation to operationalise the provision.
When one appreciates sec tion 89 in the broader constitutional scheme, specifically
when reading it together with sections 55 and 57 of the Constitution, an express textual
requirement of mechanisms and rules becomes apparent. This conclusion was coupled
with a corresponding declaration in this Court’s order that—
“[t]he failure by the National Assembly to make rules regulating the removal of a
President in terms of section 89(1) of the Constitution constitutes a violation of this
section and is invalid.”74
[65] With the enactment of rules following EFF II, the question in this case is not
whether the National Assembly has failed by not putting in place a mechanism at all.
Now that a mechanism exists and is embodied in specific rules, the inquiry is narrower,
being reduced to the question of the efficacy of the mechanism.75 The obligation to put
in place effective mechanisms is interlinked with another constitutional obligation, that
is, the National Assembly ’s “obligation to hold [M]embers of the Executive
accountable”.76
[66] As to this second obligation, it was held in EFF II that the question is not whether
the National Assembly has taken any action to hold the President accountable in
73 Id at para 196.
74 Id at para 222.
75 UDM v Speaker above n 55 a t para 40. Put differently, the question is whether rule 129I ensures that the
National Assembly can effectively discharge its obligation under section 89(1), read with section 55 of the
Constitution. This question also falls within this Court’s exclusive jurisdiction because the efficacy of the
mechanism is a requirement of a section 167(4)(e) obligatio n flowing from section 89(1). See EFF II id at
para 199.
76 UDM v Speaker id at para 40.
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fulfilment of its constitutional obligations but, rather, “whether appropriate action has
been taken against the President by the [National] Assembly, the only institution
mandated to do so”. 77 Pronouncing on this question, th is Court determined that the
National Assembly had “failed to hold the President to account following delivery of
this Court’s judgment, as was required by section 89(1)”.78 The majority counted two
obligations under section 89(1),79 and said:
“The failure by the National Assembly to determine whether the President has breached
section 89(1)(a) or (b) of the Constitution is inconsistent with this section and
section 42(3) of the Constitution.
The National Assembly must comply with section 237 of the Constitution and fulfil the
obligation referred to in [the above paragraph], without delay.”80
[67] In essence, this Court has held that implicit in section 89(1) are two obligations:
the obligation to put in place rules specially tailored for an impeachment process, which
rules must constitute an effective mechanism; and the obligation to take appropriate
action against the President where there are allegations of conduct falling within the
scope of that section.81
[68] Both obligations fit the rubric of section 167(4)(e). The obligation to put in place
an effective mechanism rests solely and specifically with the National Assembly82 and
it is for the National Assembly to determine the content of the mechanism through
which section 89 is given effect. Judicial review of this type of obligation is reserved
77 EFF II above n 3 at para 199.
78 Id at para 208.
79 See id at para 209, where this Court said:
“Having held that the [National] Assembly has failed to fulfil two of the obligations under the
Constitution, section 172(1) of the Constitution obliges us to declare that these failures are
inconsistent with the Constitution.”
80 Id at para 222.
81 Id at paras 199, 208 and 222.
inconsistent with the Constitution.”
80 Id at para 222.
81 Id at paras 199, 208 and 222.
82 EFF I above n 2 at para 43 and EFF II id at paras 16-17 and 129-30.
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for this Court, since it “trenches on the autonomy of Parliament to regulate its own
affairs and thus the principle of separation of powers”.83
[69] So too is the obligation to take appropriate action to hold the President
accountable, which is specifically imposed on the National Assembly.84 Only the
National Assembly can take the kind of appropriate action called for whe n an
impeachment ground is alleged to exist.
[70] Such action would subject the President to the checks and balances that form part
of the separation of powers, and this Court’s review of that action would concomitantly
implicate the separation of powers and entail the resolution of sensitive political issues
that may border on second -guessing the National Assembly’s actions. 85 Where it is
contended that the National Assembly has not taken appropriate action to hold the
President accountable, this Court’s exclusive jurisdiction is engaged, as was recognised
in EFF II.
[71] This Court, in EFF II, was unanimous in holding that its exclusive jurisdiction
was engaged in respect of the claims in that case, which included a claim that the
National Assembly had failed to hold the President to account through its failure to
convene an investigation into whether the President had been guilty of conduct that
would warrant the exercise by the National Assembly of its powers under section 89(1).
It was this claim that gave rise to th is Court’s declaration that the National Assembly
had failed to determine whether the President had breached section 89(1)(a) or (b) and
its consequential order that the National Assembly fulfil that obligation without delay.
[72] The obligation to take “appropriate action” to hold the President accountable
does not mean that the National Assembly would be obliged to remove the President
from office under section 89, even if the National Assembly were to determine that one
83 Doctors for Life above n 19 at para 26.
83 Doctors for Life above n 19 at para 26.
84 EFF I above n 2 at para 43 and EFF II above n 3 at paras 16-17 and 129-30.
85 Id.
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of the grounds for doing so exists. Both that determination and any removal decision
are reserved for the elected representatives serving in the National Assembly. In the
words of the majority in EFF II:
“This is because section 89(1) does not oblige the [National] Assembly to remove the
President from office, even where one or more of the listed grounds are establ ished.
On the contrary, the [National] Assembly retains a discretionary power to remove the
President.”86
[73] As stated, u nder section 89(1), what is permissive is the exercise of power to
remove the President or not . But what is not permissive, and what the obligation to
hold the President accountable demands, is that appropriate action must be taken to
determine whether one of the section 89(1) listed grounds exists. If it were not so, then
it may be asked how this Court, in EFF II, could have declared that “[t]he failure by the
National Assembly to determine whether the President has breached section 89(1)(a)
or (b) of the Constitution is inconsistent with this section and section 42(3) of the
Constitution”.87
[74] Thus, as in EFF II, one of the crucial questions before the Court in this case is
“whether appropriate action has been taken against the President by the [National]
Assembly, the only institution mandated to do so”.88
[75] In my view , therefore, there is a constitutional obligation upon the National
Assembly, at the preliminary i nquiry stage of an impeachment process , to make a
positive determination as to whether one of the grounds for impeachment exists by
86 EFF II id at para 203.
87 Id at para 222. The grounds listed in section 89(1) are preconditions for the removal of a President under that
section. But the grounds also form the foundation of the constitutional obligations under section 89(1). That is
how this Court understood the grounds in EFF II at para 179. Despite describing the grounds as preconditions,
the holdings of this Court in EFF II are unequivocal that the shortcomings of the National Assembly lay not in it
exercising a removal power unavailable to it without one of the grounds (p reconditions) being established, but
instead constituted a failure to fulfil constitutional obligations, namely, putting in place an effective mechanism
and taking appropriate action (that is, facilitating the impeachment process and determining whether on e of the
grounds exists).
88 Id at para 199.
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taking “appropriate action” when faced with an im peachment motion substantiated by
sufficient evidence.
[76] There are section 167(4)(e) constitutional obligations at stake. The challenge to
rule 129I implicates the obligations to “put effective mechanisms in place”. To be
effective, such a mechanism must allow and require the National Assembly to discharge
its obligation to “take appropriate action” to hold the President accountable. The
challenge to the National Assembly’s vote not to refer the Report to the Impeachment
Committee implicates the obligation to “hold [M]embers of the Executive accountable”
and to “take appropriate action” against the President.
[77] In respect of the challenge to the vote, can it be said that the grounds advanced
by a party to demonstrate that an obligation was not fulfilled somehow deprive this
Court of its exclusive jurisdiction? In other words, does the fact that the EFF attacks
the NA vote on the ground of rationality – traditionally a legality review ground –
somehow remove this matter from the ambit of section 167(4)(e)? The answer is no .
And to explain that answer, something must be said of this Court’s recent decision in
Zuma.89
[78] Zuma might seem to suggest that lawf ulness and rationality reviews never
engage this Court’s exclusive jurisdiction , as rationality and lawfulness are universal
standards and not specific obligation s imposed on Parliament or the President .
However, that would not be an accurate reading of that decision. Zuma does not hold
that, where section 167(4)(e) is engaged, universal standards such as lawfulness and
rationality cannot be applied by this Court in the exercise of its exclusive jurisdiction.
It makes the narrower point that rationality and lawfulness are constitutional standards
that bind all exercises of public power and are not, in themselves, obligat ions as
contemplated in section 167(4)(e).
89 Zuma above n 49.
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[79] In Zuma, this Court pointed to a crucial difference between a defective exercise
of constitut ional powers and a failure to fulfil a section 167(4)(e) constitutional
obligation, explaining that—
“[t]he constitutional imperatives of rationality and legality bind all organs of state and
public functionaries alike. Any ‘failure’ to comply with these standards is not a failure
to comply with a constitutional obligation uniquely imposed on the President, but rather
a breach of general constitutional principles binding on all holders of public power.
. . .
The President’s conduct is challenged as irrational and inconsistent with various
constitutional provisions, but his conduct does not arise from obligations imposed
specifically and uniquely on the President by the Constitution in the narrow sense
required for exclusive jurisdiction.”90 (Emphasis added.)
[80] To be clear, Zuma concerned the allegedly irrational exercise of a discretionary
constitutional power,91 not the allegedly irrational discharge of a specific constitutional
obligation. The reliance on rationality alone, and the absence of a claim grounded in a
specific and unique constitutional obligation as envisaged in section 167(4)(e), were
fatal in Zuma. That is not so here. In this case, independent, specific and unique
constitutional obligat ions as contemplated by section 167(4)(e) are im plicated.
Rationality and lawfulness are simply the standards used to assess whether those
obligations have been fulfilled.
90 Id at paras 29 and 40. In fuller terms, what this Court said at paras 39 and 40 was this:
“As already stated, it is trite that our exclusive jurisdiction is not engaged where the President
is said to have exercised some power in a manner which conflicts with constitutional principles
binding on all persons vested with public power – for example where the President exercises a
binding on all persons vested with public power – for example where the President exercises a
power arbitrarily, irrationally, for an improper purpose or in bad faith.
The applicants seek to characterise this as a failure by the President to fulfil his constitutional
obligations, but the substance of their case is that they disagree with the manner in which he
exercised his discretionary powers. The President’s conduct is challenged as irrational and
inconsistent with various constitutional provisions, but his conduct does not arise from
obligations imposed specifically and uniquely on the President by the Constitution in the narrow
sense required for exclusive jurisdiction.” (Emphasis added.)
91 In the main, the powers at issue in Zuma were the powers of the President to appoint commissions of inquiry in
terms of section 84(2)(f); appoint ministers and assign their powers an d functions in terms of section 91(2); and
temporarily assign functions to Members of Cabinet in terms of section 98. See id at para 42.
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[81] What Zuma establishes, therefore, is that universal standards such as lawfulness
or rationality are applied to measure law or conduct across the constitutional spectrum.
They cannot, without more, generate section 167(4)(e) obligations, and cannot, by
themselves, engage this Court’s exclusive jurisdiction.92 In other words, lawfulness or
rationality standards are not themselves sources of obli gations for purposes of
section 167(4)(e). Instead, a specific and unique constitutional obligation independent
of standards such as rationality an d lawfulness must be demonstrated to satisfy
section 167(4)(e).93 Standards such as rationality or lawfulness may then find
application in evaluating fulfilment, once such an obligation is demonstrated.94
[82] It follows from the reasoning in Zuma that all that needs to be established is a
section 167(4)(e) obligation. It matters not how or why the pleaded failure to fulfil that
obligation occurred – whether the failure is due to irrationality, unlawfulness, omission
or otherwise. It is equally true that, consistent with Zuma, applying various general
standards, doctrines and tests does not represent any expansion of this Court’s
section 167(4)(e) exclusive jurisdiction. 95 Such application is no ordinary legality
review: it involves only the adjudication of the fulfilment of section 167(4)(e)
constitutional obligations within the confines of their strictures.
92 Id at paras 30, 39, 42 and 44.
93 Id at paras 27, 29 and 35.
94 When section 167(4)(e) states that this Court has exclusive jurisdiction to decide that Parliament or the President
has “failed” to fulfil a constitutional obligation, it means a failure to do so in the manner required by the
Constitution. A failure occurs within the meaning of section 167(4)(e) not only when Parliament or the President
fails to act at all but also when Parliament or the President, in purporting to fulfil the obligation, acts in a way that
is constitutionally invalid. The effect of a successful review in such circumstances – the setting aside of the
purported conduct by Parliamen t or the President in compliance with the constitutional obligation – is to reveal
that the obligation has not been fulfilled as required by the Constitution.
95 If anything, the danger arises from the opposite. If this Court were to hold that the applicat ion of one of these
universal standards to steps or measures taken in fulfilment of constitutional obligations removed matters from
this Court’s exclusive jurisdiction, it would involve the other superior courts enquiring into the existence and
content of the obligation in question, defining any section 167(4)(e) obligation by determining whether its scope
and terms require the steps or measures in question, and then using rationality or lawfulness to evaluate whether
the steps or measures taken by Parliament or the President have fulfilled that obligation. In essence, other courts
would be tasked with adjudication under section 167(4)(e). That would be completely at odds with this Court’s
exclusive jurisdiction jurisprudence – a jurisprudence emphatic about precluding other courts from intruding into
the domain of other branches of government in disputes implicating sensitive areas of separation of powers and
crucial political questions.
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[83] To sum up, once there is an allegation of a failure to fulfil a specific obligation
of the kind envisaged in section 167(4)(e), as is the case here, this Court’s exclusive
jurisdiction is engaged. What underpins the failure may be any kind of inconsistency
with the constitutional obligation in question, including unlawfulness or irrationality.
[84] In this matter, section 167(4)(e) constitutional obligations were pleaded and have
been established. Accordingly, the ineluctable conclusion is that this Court’s exclusive
jurisdiction is engaged . However, this finding does not dispense with the need to
consider the other procedural issues, namely delay and mootness, which were raised in
opposition to the application . I proceed to deal with these issues , in respect of which
this Court possesses a discretion grounded in its inherent power to protect and regulate
its processes,96 to determine whether it is nonetheless in the interests of justice for the
matter to be entertained regardless of their existence.
Delay
[85] Any legality review must be brought without undue delay. 97 Courts have the
power to refuse to consider a review application in the face of delay, or to overlook the
delay.98
[86] It must be recognised that the rule of law generates an inherent tension when
challenges to exercises of public power are delayed. Courts are enjoined not to allow
procedural obstacles to shield judicial scrutiny over exercises of public power, but, at
the same time, must bear in mind the public interest in finality and certainty , which
requires such challenges to be lodged without undue delay.99
96 Section 173 of the Constitution.
97 Khumalo v MEC for Education, KwaZulu-Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); 2014 (5) SA 579
(CC); (2014) 35 ILJ 613 (CC) (Khumalo) at para 44.
98 Id.
99 Id at paras 45-7 and Buffalo City above n 53 at paras 68-9.
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[87] To manage this tension, this Court has developed a two-stage approach to delay,
which has been described as flexible,100 factual, multi-factored and context-sensitive.101
In the first stage, it must be determined whether the delay is undue or unreasonable, and
in the second stage, the enquiry is whether the Court should nevertheless overlook the
delay.102
[88] The National Assembly took the impugned decision on 13 December 2022, and
the EFF brought this application 14 months later, on 13 February 2024. The EF F’s
founding affidavit contains no explanation for its delay in challenging the
constitutionality of the NA vote. Instead, it argues that delay is not a consideration
because this is a declaratory application rooted in sections 1 and 172 of the Constitution.
It also submits that even if this Court were to apply the principles of delay, the interests
of justice demand that the National Assembly discharge its duty by holding the
President to account for the violations which the Panel found that he prima fac ie
committed and, therefore, warrant the grant of the relief it seeks.
[89] The EFF’s substantial delay, which was not explained, is unreasonable. 103 This
is a significant factor in the adjudication of this matter, even if it is accepted that the
application is one for declaratory relief , as the EFF claims .104 As already indicated,
however, the challenge launched by the EFF is, in substance, a legality review. This
Court has previously held that it is not incumbent on a party launching a legality review
100 Buffalo City id at paras 49-51 and 54.
101 Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2) SA 622 (CC)
(Tasima I) at para 144.
102 Khumalo above n 97 at paras 49-52. This Court has also articulated the so-called “Gijima rule”, which applies
in cases where the delay cannot be overlooked, but the unlawfulness of the impugned decision is clear and not
disputed (see Buffalo City above n 53 at paras 63, 66 and 71). In these instances, this Court may be constitutionally
compelled to declare the decision unlawful in terms of its duty under section 172(1)(a) of the Constitution. But
this application is not such a case, and nothing more need be said about the rule .
103 Khumalo id at para 50, finding that an unexplained delay must be viewed as unreasonable.
104 Applications for declaratory relief must also be launched within a reasonable time. See, for example, Beweging
vir Christelik -Volkseie Onderwys v Minister of Education [2012] ZASCA 45; [2012] 2 All SA 462 (SCA) at
para 34 and Samancor Holdings (Pty) Ltd v Samancor Chrome Holdings (Pty) Ltd [2021] ZASCA 60; [2021] 3
All SA 342 (SCA); 2021 (6) SA 380 (SCA) at para 38.
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application to bring a formal application for condonation.105 Although the EFF did not
have to seek condonation, its submission that its delay is irrelevant is fallacious. It must
still be determined whether the interests of justice require that the delay should be
overlooked, as the EFF itself obliquely acknowledged.
[90] I have already found that the lengthy and unexplained delay in this case is
unreasonable. Therefore, it remains to be determined whether, even in the face of an
extensive delay and absent an explanation, the delay should be overlooked, mindful that
this Court’s discretion is not unlimited and that its exercise must be guided by the values
of the Constitution. 106 The relevant factors include potential prejudice to affected
parties and adverse c onsequences that may result if the NA vote is set aside; 107 the
nature of the impugned decision and the merits of the challenge; 108 the conduct of the
applicant and whether it acted in good faith; 109 whether there was early notification of
the challenge to the o ther part ies;110 the continued existence and availability of
evidence;111 and the practical possibility of reversing the defect.112 But, ultimately, the
overarching consideration is what the interests of justice require. 113
[91] It is important that courts should not treat delay as an end in itself. Delay
assumes significance for practical reasons. The delay bar has a purpose. An inordinate
delay may weaken a court’s ability to assess the matter because—
105 In Buffalo City above n 53 at para 51, this Court noted that in a legality review, no explicit condonation
application is required. See also Khumalo above n 97 at para 44.
106 Khumalo id.
107 Id at para 52 and Buffalo City above n 53 at para 54.
108 Khumalo id at para 57 and Buffalo City id at para 55.
109 Buffalo City id at paras 59-62.
108 Khumalo id at para 57 and Buffalo City id at para 55.
109 Buffalo City id at paras 59-62.
110 Mogale v Speaker of the National Assembly [2023] ZACC 14; 2023 (6) SA 58 (CC) ; 2023 (9) BCLR 1099
(CC) at para 23.
111 Id.
112 Id.
113 In Mogale id at para 19, this Court noted that “even where there are delays in bringing public participation
challenges, this Court considers whether it is in the interests of justice to non-suit applicants on that basis”.
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“[t]he clarity and accuracy of decision -makers’ memories are bound to decline with
time. Documents and evidence may be lost, or destroyed when no longer required to
be kept in archives . Thus the very purpose of a court undertaking the review is
potentially undermined where, [because] of a lengthy delay, its ability to evaluate fully
an allegation of illegality is impaired.”114
If there is no prejudice to an opposing party or the court’s ability to adjudicate a matter,
delay should not ordinarily foreclose a review challenge.
[92] Although the EFF’s delay is unreasonable, several factors favour overlooking it.
None of the respondents have been prejudiced by it and this Court’s ability to adjudicate
the matter has not been impaired. The NA vote was made on the basis of the Report,
which is part of the record of these proceedings, and the dispute turns on discrete legal
questions. There is no question of unavailable evidence and this Court and the parties
stand in the same position in which they would have been had the challenge been
brought timeously.
[93] Regarding the conduct of the parties, while the delay is unexplained, some
latitude should be extended to the EFF as it cannot be said that it conducted itself in bad
faith even though it ought to have acted more diligently. It should also be noted that
the question of delay in exclusive jurisdiction cases has, to date, only arisen in the
context of public participation challenges.115 This Court has not previously pronounced
on whether delay may operate to exclude adjudication on the merits in matters which
trigger its exclusive jurisdiction outside that context. The dearth of authority on how
delay is to be treated in other exclusive jurisdiction matters somewhat mitigates the
EFF’s failure to address the issue adequately. While the contention that delay is not a
factor is unsustainable, the delay itself is pardonable.
114 Khumalo above n 97 at para 48. See also Tasima I above n 101 at para 160.
115 Doctors for Life above n 19 at paras 216 and 218 and Mogale above n 110 at para 19.
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[94] The nature of the decision, the prospects of success, as well as the importance of
what is at stake must also be factored into the equation. The National Assembly’s
oversight role over the Presi dent lies at the heart of our constitutional scheme.
Accountability is one of the foundational values of our Constitution, and the National
Assembly bears the responsibility to ensure that the President is held accountable. The
issues are of tremendous i mportance. It would be injudicious t o permit delay to
foreclose an interrogation of whether the National Assembly has fulfilled its
responsibility of holding the President accountable, where the delay has neither caused
prejudice nor hindered this Court’s ability to adjudicate the matter and the merits are,
at least, arguable.
[95] Overlooking an excessive delay, even where a proper explanation is lacking, is
not without precedent in this Court. In Mogale, a delay of over two years was
overlooked,116 and in Tasima I, a “porous” explanation for a five -year delay was not a
bar to this Court engaging on the merits.117
[96] I am satisfied in all the circumstances that in this instance there is a proper basis
to overlook the delay.
Mootness
Whether the challenge to rule 129I is moot
[97] The opposing parties rightly did not contend that the EFF’s challenge to rule 129I
is moot. Indeed, nothing precludes the adjudication of the challenge to this rule in light
of this Court’s finding in O’Brien118 that provisions of law have enduring effect. This
Court put it thus:
116 Mogale id at para 31.
117 Tasima I above n 101 at paras 158-71.
118 O’Brien v Minister of Defence and Military Veterans [2024] ZACC 30; 2025 (2) SA 613 (CC); 2025 (4) BCLR
460 (CC).
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“[A] constitutional challenge to existing and fully operational statutory provisions can
never be considered moot. Constitutional-validity inquiries are always objective.
Here, moreover, the specific facts relating to the case fortify the applicant’s
constitutional challenge in the sense that they bear ou t his constitutional -invalidity
complaints. The challenges brought by the applicant plainly raise an existing or live
controversy between the parties over the constitutionality of the impugned provisions
and their proper interpretation. Any orders declar ing the legislation to be
constitutionally invalid would also have an immediate practical effect or result not only
for the applicant, but also for all members of the [South African National Defence
Force] and the broader public.”119 (Footnote omitted.)
[98] There is no fixed time period within which a challenge to a statutory provision
must be brought. It may be subjected to constitutional scrutiny for as long as it is
operative. In the present context, it hardly makes sense that a constitutional challenge
to statutory provisions governing the National Assembly would become moot simply
because the term of a particular National Assembly has come to an end, given that the
legal effect of those provisions continues to operate beyond the lifespan of that National
Assembly. The rules regulating the National Assembly remain part of the statutory
framework and remain extant across the lifespans of various National Assemblies until
they are struck down , amended or repealed . That the composition of the National
Assembly has changed does not detract from the relevant rule’s binding force. It simply
means that the operation of the provisions will continue into the next Administration.
[99] In other words, whether a rule or law is constitutionally valid is an objective
inquiry which examines whether those provisions conform to the Constitution, and that
inquiry which examines whether those provisions conform to the Constitution, and that
inquiry subsists as long as the provisions are in effect. To dismiss a challenge of that
nature for mootness would, among other risks, allow potentially unconstitutional rules
to persist without question, undermine constitutional supremacy and leave future
National Assemblies subject to defective rules. Thus, even after a National Assembly’s
term ends, the controversy is not extinguished . The relevant piece of legislation
119 Id at para 56.
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continues to regulate the institutional framework of representative democracy, and its
validity remains a pressing constitutional question.
[100] The constitutionality of rule 129I, therefore, remains a live issue that requires
resolution. The question of mootness can relate only to the EFF’s attack on the NA
vote.
Whether the challenge to the NA vote is moot
[101] Parliament and the ANC argue that, owing to the EFF’s delay and the expiry of
the term of the Sixth Parliament, the relief sought by the EFF has become moot. They
contend that any order that this Court may make regarding the NA vote will not have
any practical effect either for the partie s or others. This is so, they argue, because the
Sixth Parliament ceased in terms of section 49 of the Constitution ,120 which fixes the
lifespan and competence of each National Assembly. They also point to rule 351(2)121
which provides that all business before the National Assembly will lapse on the last
sitting day of the National Assembly’s term. They contend that the Sixth Parliament’s
term ended on 21 May 2024 and, because the impeachment motion formed part of the
business of the Sixth Parliament, which has already concluded its business and no
longer exists , the motion lapsed and cannot be revived, therefore, rendering
consideration of the issue academic. A section 89 inquiry, they submit, is now legally
impossible.
[102] The ANC further argues that, on 14 June 2024, the EFF submitted an urgent
motion to the newly sworn -in Seventh Parliament and tabled this matter for
consideration by the new National Assembly. In the ANC’s submission s, it is
inappropriate for this Court to decide a matter that is pending before the new National
120 Section 49(4) of the Constitution provides that “[t]he National Assembly remains competent to function from
the time it is dissolved or its term expires, until the day before the first day of polling for the next [National]
Assembly”.
121 In terms of this rule, “[a]ll business before the [National] Assembly or any [National] Assembly committee on
the last sitting day of a term of the [National] Assembly or when the [National] Assembly is dissolved, lapse at
the end of that day”.
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Assembly, thus, this application is a forum -shopping exercise and an abuse of this
Court’s process.
[103] The EFF insists that the matter is not moot , given the risk of partisan interests
allowing obstruction over legality. It also contends that mootness is no bar to
considering an issue, as the interests of justice must be considered. It further argues
that the National Assembly’s decision continues to have legal co nsequences because it
enables a President who may lack eligibility to remain in office, which constitutes a
continuing wrong.
[104] The EFF further contends that the National Assembly’s continuing duty of
accountability encompasses, among other things, ensuring that the President is lawfully
entitled to hold the office he occupies. It argues that e very National Assembly is
duty-bound to hold the President accountable and that nothing prevents the new
National Assembly from pursuing impeachment proceedings, since the prima facie case
against the President remains.
[105] It must be considered, therefore, whether the impugned vote, adopted during the
term of the Sixth Parliament which expired on 28 May 2024, remains justiciable despite
the expiry of that National Assembly’s term under section 49 of the Constitution and
the transitional provisions that allow the National Assembly to function until the day
before polling for the next Parliament.
[106] In terms of section 16(2)(a)(i) of the Superior Courts Act ,122 “[w]hen at t he
hearing of an appeal the issues are of such a nature that the decision sought will have
no practical effect or result, the appeal may be dismissed on [mootness] alone”.
[107] This Court explained mootness in National Coalition123 as follows:
122 10 of 2013.
123 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (1) BCLR
39 (CC); 2000 (2) SA 1 (CC).
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“A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on
abstract propositions of law.”124
[108] However, even though a matter may be moot , as betw een the parties in this
matter, that does not necessarily operate as an absolute bar to justiciability. This Court
still retains a discretion to entertain the matter if it is in the interests of justice to do
so.125 So, the test for mootness is a two -stage inquiry in which a court first considers
whether the dispute still presents a live controversy and, in the appropriate case, goes
on to determine whether it should nevertheless decide the case in the interests of justice
even if it is moot. In keeping with this principle, this Court has claimed its discretion
to adjudicate cases where the interests of justice so dictate.126
[109] In that exercise, this Court has identified several factors that are relevant when
deciding whether to hear a matter that has become moot. These include: whether an
order will have any practical effect either on the parties or on others; 127 the nature and
extent of such practical effect; 128 the importance of the issue and fullness of the
argument advanced;129 the need to resolve disputes between different courts;130 and the
124 Id at fn 18. See also JT Publishing (Pty) Ltd v Minister of Safety and Security [1996] ZACC 23; 1996 (12)
BCLR 1599 (CC); 1997 (3) SA 514 (CC).
125 MEC for Education, Kw aZulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99
(CC) at para 32 and South African Reserve Bank v Shuttleworth [2015] ZACC 17; 2015 (5) SA 146 (CC); 2015
(8) BCLR 959 (CC) (Shuttleworth) at para 27.
126 Shuttleworth id; President of the Republic of South Africa v Democratic Alliance [2019] ZACC 35; 2019 (11)
BCLR 1403 (CC); 2020 (1) SA 428 (CC) at para 17; and Independent Electoral Commission v Langeberg
Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) ( Langeberg Municipality) at
para 11.
127 Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) at para 29.
128 Langeberg Municipality above n 126 at para 11.
129 Director-General, Department of Home Affairs v Mukhamadiva [2013] ZACC 47; 2014 (3) BCLR 306 (CC)
at para 40.
130 Member of the Executive Council for the Department of Co -operative Governance and Traditional Affairs,
KwaZulu Natal v The Nkandla Local Municipality [2021] ZACC 46; 2022 (8) BCLR 959 (CC); (2022) 43 ILJ
505 (CC) at para 16.
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prospects of success.131 To this should be added that “the courts should never exercise
their discretion against hearing a matter if there is any public benefit to be derived from
a decision being made”.132
[110] There are several reasons why the challenge to the NA vote cannot be considered
moot. First, the official capacities of functionaries are generally held to enduring legal
obligations attaching to those capacities despite the succession of incumbents or change
in their ranks.133 For example, in O’Brien,134 the High Court granted an order in August
2021 during the incumbency of a particular Minister of Defence. By the time this Court
heard the matter in confirmation proceedings and issued its order in December 2024, a
new Cabinet had been constituted following the general elections on 29 May 2024, and
the Ministry was headed by a different Minister.
[111] In DA v Minister of COGTA,135 where there was no prior order of this Court, the
application was launched by a Minister whose stint as the executive head of the relevant
state department thereafter ended, leading to replacement with a new incumbent while
the matter was still pending. The application was heard by this Court on
6 February 2025 and judgment was delivered on 27 February 2026, after yet another
Minister had taken over the office. This demonstrates that a change of the office-holder
has no bearing on the status, rights and obligations of the office itself. 136
131 AB v Pridwin Preparatory School [2020] ZACC 12; 2020 (5) SA 327 (CC) ; 2020 (9) BCLR 1029 (CC) at
para 53.
132 Loots “Standing, Ripeness and Mootness” in Woolman et al (ed) Constitutional Law of South Africa Service
5 (2013) at 25.
133 This would also be the case for lease holding, property holding, boards of directors and even in the case of
transmission of responsibility to a deceased’s estate upon their death.
134 O’Brien above n 118 at para 30.
134 O’Brien above n 118 at para 30.
135 Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs [2026] ZACC 8; 2026 (5)
BCLR 381 (CC).
136 See also Law Society of South Africa v President of the Republic of South Africa [2018] ZACC 51; 2019 (3)
SA 30 (CC); 2019 (3) BCLR 329 (CC) at para 94, where this Court said:
“We cannot withdraw the President’s signature. But, we may direct him to withdraw his
signature to the Protocol. One President is a successor in title of another and the obligations are
similarly transferable from one to the other. For the execution of the duties attendant to the
presidential office and antecedent authority is never really incumbent -specific. The power and
obligations devolve from one personalit y to another – it is, after all, the Presidency. Whoever
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[112] Secondly, it might be argued that the NA Rules do not apply to executive
functionaries in the same way the y apply to the National Assembly and that, given the
stipulations of rule 351, the decision has lapsed and is now moot . That is, this Court
cannot revive a motion that has been extinguished by the NA Rules. But such a view
is untenable as it would elevate the NA Rules above the Constitution’s provisions which
require consistency with its injunctions and render orders of court binding. 137
[113] Additionally, there are important practical considerations to take into account.
The process of an impeachment motion being considered by the Speaker, its referral to
the Panel, an investigation of the matter by the Panel, a consideration by the National
Assembly of the Panel’ s R eport and then a full -blown inquiry by an Impeachment
Committee, could take many months. If impeachment proceedings that started in one
Administration could not be carried over to the next, it would be practically impossible
to initiate and finalise impeachment proceedings, despite potentially serious misconduct
by a President, in the year or two before the end of the life of that Administration. The
delays inherent in the process would be even greater if there was intervening litigation,
as has occurred in this case.
[114] Women’s Legal Centre II138 amply illustrates that court orders issued in respect
of the National Assembly continue to apply to its successors even after a particular
National Assembly is dissolved, rule 351 is triggered, an election is conducted and the
composition of the National Assembly is changed.139 In that matter, notwithstanding
the President happens to be will be directed to withdraw the President’s signature to the
Protocol.”
137 Such orders are competent and binding under section 172 and , pursuant to constitutional imperat ives, even
when cutting across extant statutory provisions. See Electoral Commission v Mhlope [2016] ZACC 15, 2016 (5)
SA 1 (CC); 2016 (8) BCLR 987 (CC) at para 133.
138 Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23; 2022 (5) SA 323
(CC); 2023 (1) BCLR 80 (CC).
139 This Court stated subsequently that its “declaration of constitutional invalidity of 28 June 2022 was suspended
for a period of 24 months to allow Parliament to correct the defect, and was due to expire on 27 June 2024”. See
Speaker of the National Assembly v Women ’s Legal Centre Trust [2024] ZACC 18; 2025 (1) BCLR 103 (CC)
(Women’s Legal Centre III ) at para 2. This meant that the original order spanned an election period – between
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the relevant lapse and change in composition after elections, the order of this Court
remained extant, unaffected by the elections, and Parliament was obliged to pass th e
contemplated legislation by the deadline or seek an extension. 140 Parliament chose the
latter option.141
[115] Lastly, it is established that “[o]ur Constitution confers on the courts the role of
arbiter of legality ”.142 This, by implication, involves the courts routinely exercising
their expansive review powers to correct the final but irregular decisions of
functionaries.143 In the ordinary course, in public law, a court remits the decision to the
functionary upon the invalidation of the exercise of public power; or, in exceptional
circumstances, the court may substitute a decision for its own.144
10 May 2024 and 30 June 2024 – when the incumbent President was re -elected and a new Cabinet was formed.
See also Blind SA v President of the Republic of South Africa [2025] ZACC 9; 2025 (7) BCLR 757 (CC) at para 11.
140 In Women’s Legal Centre III id at para 20, this Court, when taking judicial notice of the delay caused by the
2024 elections, said:
“In the new term, Parliament will comprise new [M]embers. Some of them will require time to
familiarise themselves with the Parliamentary rules and procedures governing the law -making
processes as well as with the subject matter of the Bill, taking into account its complexity in as
far as the laws governing various traditional and religious faiths are concerned.”
141 Id at paras 1, 2 and 5.
142 Tasima I above n 101 at para 147.
143 See, for example, Bengwenyama Minerals (Pty) L td v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011
(3) BCLR 229 (CC); 2011 (4) SA 113 (CC) at paras 81-7; Khumalo above n 97 at para 53; AllPay Consolidated
Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency [2013] ZACC
42; 2014 (1) BCLR 1 (CC); 2014 (1) SA 604 (CC) at para 25; EFF I above n 2 at para 103 ; Merafong City v
AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) at paras 33 and 117
(dissenting judgment of Jafta J); State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC) at paras 52-3; and EFF II above n 3 at para
209. In EFF I above n 2 at para 103, this Court noted:
“Declaring law or conduct inconsistent with the Constitution and invalid is plainly an obligatory
power vested in this Court as borne out by the word ‘must’. Unlike the discretionary power to
make a declaratory order in terms of section 38 of the Constitution, this Court has no choice but
to make a declaratory order where sect ion 172(1)(a) applies. Section 172(1)(a) impels this
Court, to pronounce on the inconsistency and invalidity of, in this case, the President’s conduct
and that of the National Assembly. This we do routinely whenever any law or conduct is held
to be inconsistent with the Constitution. It is not reserved for special cases of constitutional
invalidity.” (Emphasis added.)
144 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2015] ZACC 22;
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) at para 42. See also Corruption Watch NPC v President of
the Republic of South Africa [2018] ZACC 23; 2018 (2) SACR 442 (CC); 2018 (10) BCLR 1179 (CC) (Corruption
Watch) at paras 68-90; and Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co Ltd, Cape
Town 2021) (Hoexter and Penfold) at 780-7.
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[116] The corollary of this Court exercising its review powers to correct final but
irregular decisions is that those decisions are quashed and reduced to a nullity in a
legal-technical sense. Typically, but not always, the quashed decision is either then
returned to the relevant functionary or replaced by that of the court . Therefore, by
means of a legal fiction, it is as if – legally – the irregular decision was never taken.
[117] Where there is interference by a court in the form of setting aside and remittal ,
the status quo ante (pre-existing state of affairs) would be revived. In this case, the
status quo ante would be a time before the NA vote not to refer the Report to the
Impeachment Committee was made and before rule 351 took effect. With a return to
that status quo ante, the impeachment motion would not have been disposed of through
a vote. Nor would it have been caused to lapse by the operation of rule 351, which
would not have taken effect. Upon remittal, there would thus remain a live controversy
before the National Assembly.145 It must follow on this reasoning that the challenge to
the NA vote is not moot.
[118] Clearly, the challenges mounted in this matter are not moot, and so this Court
need not consider whether it should exercise its discretion to overlook any mootness
and reach the merits.
[119] Having established that this Court may scrutinise the impugned rule and NA vote
in the exercise of its exclusive jurisdiction, I proceed to determine whether rule 129I
and the NA vote pass constitutional muster.
145 Having regard to the findings of this judgment and the terms of the proposed order, the remittal in this case
would not, strictly speaking , involve referring the decision back to the functionary that originally took it, but
would rather consist of sending the decision to the competent authority not previously seized with the matter.
That would not be a remittal in the orthodox sense, but rather a constructive remittal. On constructive remittals,
see Herd “Schrödinger’s Interdict? Subsidiarity and Avoidance; the Rule of Law and Constitutional Rights”
(2024) 14 Constitutional Court Review 413 at 428-9.
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Validity of rule 129I
[120] At first glance, it may appear that the National Assembly has complied with the
obligation articulated in EFF II. It did put in place mechanisms to regulate the
impeachment process envisaged in section 89, by inserting rules 129A to 129Q into the
NA Rules in 2018. But mere formal compliance with the obligation to put in place
mechanisms is insufficient . The Constitution requires not merely the existence of a
mechanism, but one that is effective.
[121] Section 89(1) contemplates a two-stage process for impeachment: a preliminary
inquiry to determine whether a listed ground exists ,146 followed (if such a ground is
established) by a decision by the National Assembly on whether to remove the President
from office. 147 Both stages must be governed by rules adopted by the
National Assembly, because “[w]ithout rules defining the entire process, it is
impossible to implement section 89”.148
[122] Under the current NA Rules, an impeachment motion must be screened for
compliance by the Speaker,149 assessed for sufficiency and merit by the P anel,150
considered by the National Assembly on the question of referral for an inquiry,151
examined by an Impeachment Committee of inquiry152 and then referred to the National
Assembly as a whole for it to be voted upon.153
146 EFF II above n 3 at para 180.
147 Id at para 173: “This provision empowers the [National] Assembly and the [National] Assembly alone to
remove the President from office.” See also id.
148 Id at paras 180 and 182.
149 Rule 129B.
150 Rule 129G.
151 Rule 129I.
152 Rules 129J-129N.
153 Rule 129O.
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[123] In this case, the National Assembly voted not to refer the matter to the
Impeachment Committee. This might appear to be a straightforward instance of
decision-making by the National Assembly as contemplated in section 53.154
[124] If the question was properly before the National Assembly, it would appear that
section 53 was complied with. But that is the very question here: should the Report
have been tabled before the National Assembly at that juncture of the impeachment
process? In response to that question, section 53 is silent. Section 53 does not prescribe
which decisions must be taken by the National Assembly as a whole, which may or
must be assigned to committees or other mechanisms ; nor does it determine the model
of decision-making within those structures.155
[125] It follows that the only constitutional basis for the vote by the National Assembly
being interposed between the Panel step and the Impeachment Committee step, other
than the exercise of the National Assembly’s own authority and discretion , is its
authority to “determine and control its internal arrangements”.156
[126] The National Assembly’s authority and discretion to regulate its own processes
is not unfettered. Although section 57 states that it “may” make rules and orders
concerning its business, this Court has already held that the making of “spec ially
154 Section 53(1) provides:
“Except where the Constitution provides otherwise—
(a) a majority of the [M]embers of the National Assembly must be present before a vote
may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the [M]embers must be present before a vote may be taken on any
other question before the [National] Assembly; and
(c) all questions before the [National] Assembly are decided by a majority of the votes
cast.”
155 All the Constitution requires, as per section 55(2), is that the National Assembly must provide for mechanisms
to ensure that the Executive is accountable to it. Elsewhere, in section 57, the National Assembly is vested with
the power to regulate its own proceedings and procedures. Neither section 55(2) nor section 57 stipulate the model
of decision-making for committees of the National Assembly or its accountability mechanisms.
156 Section 57(1) of the Constitution.
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tailored” rules is obligatory to regulate the process of impeachment under
section 89(1).157
[127] Through rules governing the impeachment process, the National Assembly is
required to ensure that impeachment motions are dealt with efficiently and thoroughly.
A preliminary inquiry must be conducted and, as held in EFF II, “[t]he form which this
preliminary inquiry may take depends entirely upon the [National] Assembly”.158
[128] Of course, there are still constitutional limits within which the National
Assembly must formulate its rules. It could hardly be contended, for example, that since
the National Assembly is free to determine the form of the preliminary inquiry, it may
formulate an irrational or unlawful process. Another such limit on the National
Assembly’s freedom to determine the impeachment process flows from
section 57(1)(b). This section requires the r ules and orders of the National Assembly
to be subject to the prin ciples of “representative and participatory democracy,
accountability, transparency and public involvement”. 159 Rule 129I interposes a vote
by the National Assembly between the Panel step and the Impeachment Committee step
of the preliminary inquiry stage. Does this balance the section 57(1)(b) values and does
it result in an effective mech anism that enables the National Assembly to take
appropriate action?
[129] The fact that the National Assembly is vested with the power to make its own
rules and orders, defin e the grounds and craft a mechani sm for the operation of
section 89(1), means that it has significant control over the entire impeachment process
from start to finish. Moreover, the value of representative democracy 160 predominates
157 EFF II above n 3 at para 196.
158 Id at para 180.
159 Section 57(1)(b) of the Constitution.
160 In the one-dimensional sense of Members deliberating and voting as a collective, as opposed to a more nuanced
understanding which would involve the electorate being more informed both before and after ag gregating their
will at the ballot box and the representatives themselves being equipped with a better and more informed
appreciation of the questions placed before them. This latter conceptualisation of representative democracy
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in the second stage of the impeachment process, with the National Assembly being the
ultimate authority under section 89 in determining whether “one of the listed grounds
exists”,161 which “it alone is entitled to determine”. 162 This ultimate “exclusive
jurisdiction of the [National] Assembly” must be respected, 163 leaving democratic
decision-making the ultimate modus (method) of section 89(1).
[130] That said, by its very nature, the same is not true of the first stage which entails
a preliminary inquiry. The preliminary inquiry, as this Court confirmed in EFF II,
consists of a “sifting mechanism [to] determine whether there is a case for the President
to answer”164 and adjudication of the facts and applicable law. The primary purpose is
to determine whether a ground listed in section 89(1) exists, thereby giving effect to the
requirements of accountability and transparency under section 57(1)(b). Thus, the
principle of democracy is inherently limited in the first stage by the structure, nature
and objects of the section 89(1) process.
[131] Further constraint is to be imposed upon the democratic decision-making of the
National Assembly by its own definitions for the section 89(1) grounds, in accordance
with the NA Rules. The scope and content of the grounds are not defined in the
Constitution. Instead, they are left to the National Assembly’s collective
predetermination so as to provide normative certainty and constrain the National
Assembly from the outset.165 In other words, the National Assembly cannot define the
comports with the elected representatives in the National Assembly having an obligation to scrutinise executive
action.
161 EFF II above n 3 at para 179.
162 Id at para 178.
163 Id.
164 Id at para 189.
165 This accords with the oft-cited statement in Affordable Medicines Trust v Minister of Health [2005] ZACC 3;
2005 (6) BCLR 529 (CC); 2006 (3) SA 247 (CC) at para 108 that—
2005 (6) BCLR 529 (CC); 2006 (3) SA 247 (CC) at para 108 that—
“[t]he law must indicate with reasonable certainty to those who are bound by it what is required
of them so that they may regulate their conduct accordingly.”
The promotio n of certainty itself – if effective – engenders greater consistency, equality and fairness in
decision-making. See, in the context of stare decisis (the legal doctrine meaning “to stand by things decided”,
requires courts to follow established principles or rulings), Brickhill “Precedent and the Constitutional Court”
(2010) 3 Constitutional Court Review 79 at 93. See also Daniels v Campbell [2004] ZACC 14; 2004 (5) SA 331
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grounds ad hoc, after the fact and potentially capriciously in the course of its inquiry.
This view was articulated as follows in EFF II:
“It is evident that the drafters left the details relating to these grounds to the [National] Assembly
to spell out. But the drafters could not have contemplated that [M]embers of the [National]
Assembly would individually have to determine what constitut es a serious violation of the law
or the Constitution, and conduct on the part of the President which, in the first place, amounts
to misconduct and whether, in the second place, such conduct may be characterised as serious
misconduct. If this were to be the position, then we would end up with divergent views on what
is a serious violation of the Constitution or the law and what amounts to serious misconduct
envisaged in the section.
And since the determination of these matters falls within the exclusive j urisdiction of the
[National] Assembly, it and it alone is entitled to determine them. This means that there must
be an institutional pre -determination of what a serious violation of the Constitution or the law
is. The same must apply to serious miscondu ct and inability to perform the functions of the
office.”166
[132] The section 89(1) grounds have been described as “conditions for the President’s
removal”.167 They are, in essence, jurisdictional facts 168 requiring an investigation or
inquiry that is adjudicative in nature, involving the application of law to facts on an
objective basis,169 and which is capable of being subjected to objective scrutiny.170 This
(CC); 2004 (7) BCLR 735 (CC) at paras 94 -5. On discretion and constraint in the context of rights, see Dawood
v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC
8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at paras 46-55.
166 EFF II above n 3 at paras 177-8.
167 Id at para 179.
166 EFF II above n 3 at paras 177-8.
167 Id at para 179.
168 Premier, Gauteng v Democratic Alliance ; All Tshwane Councillors who are Members of the Economic
Freedom Fighters v Democratic Alliance ; African National Congress v Democratic Alliance [2021] ZACC 34;
2021 (12) BCLR 1406 (CC); 2022 (1) SA 16 (CC) at para 69.
169 Democratic Alliance v President of South Africa [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA
248 (CC) ( Simelane) at paras 14 -20. In the context of the President appointing a National Director of Public
Prosecutions, this Court held that, objectively, the law requires any prospective holder of that office to be “fit and
proper” to occupy that position as required by law, a qualif ication which requires the presence of certain
objectively ascertainable jurisdictional facts, the finding of which is subject to judicial review.
170 In Simelane id at para 23, this Court noted that—
“[i]t is correct that the determination whether a candida te does fulfil the fit and proper
requirement stipulated by the [National Prosecuting Authority Act 32 of 1998] involves a value
judgment. But it does not follow from this that the decision and evaluation lie within the sole
and subjective preserve of the President. Value judgments are involved in virtually every
decision any [M]ember of the Executive might make where objective requirements are
stipulated. It is true that there may be differences of opinion in relation to whether or not
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leaves minimal scope for the preliminary i nquiry to be a politically -driven exercise.171
Properly understood, the kind of determination required of the National Assembly under
section 89(1) does not involve the weighing of options, balancing incommensurables
and divergent factors and navigating political objectives to reach a subjective valu e
judgment, removed from an objective inquiry into whether a ground exists . Plainly,
determining whether any of the section 89(1) grounds exists is not a n inherently and
exclusively democratic exercise, but predominantly an inquisitorial, factual and lega l
exercise.172
[133] This Court’s judgment in Oriani-Ambrosini173 makes clear why accountability
and transparency are undermined when the National Assembly performs a gatekeeping
function at an early stage of a constitutional process. There, this Court invalidated rules
of the National Assembly which required an individual Member to obtain the National
Assembly’s permission before introducing a Bill. 174 In this Court’s view, those rules
requiring permission from the National Assembly at the outset of the legislative process
placed “power exclusively in the hands of the National Assembly, functioning as a
collective body” and “[creating] a high risk” of the power being “paralysed”.175 This
amounted to unconstitutional gatekeeping by the National Assembly.
objective criteria have been established or are present. This does not mean that the decision
becomes one of subjective determination, immune from objective scrutiny.”
171 See Mazibuko v Sisulu above n 62 at paras 61-2 and EFF II above n 3 at paras 190-4. Further, the determination
being concerned with whether an objectively ascertainable jurisdictional fact is present means that polycentric
considerations and motivations are excluded from the assessment of the facts and the application of the law. See
id at paras 14-20.
id at paras 14-20.
172 Functionally, this would involve gathering evidence, examining and testing the evidence , distilling and
ascertaining the facts from the evidence and applying the law on a preliminary basis. Although ultimately
susceptible to binary democratic decision-making, that is not an inherently democratic function. This is why – at
least in part – this Court, in EFF II , recognised that the ultimate determination is reserved for our elected
representatives bearing their political mantle, but the prior process cannot be managed and controlled by a
proportionally constituted committee. See EFF II id at paras 190-5.
173 Oriani-Ambrosini v Sisulu, Speaker of the National Assembly [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013
(1) BCLR 14 (CC).
174 Id at paras 5, 94 and 96. It should be noted that an objective factual and legal determination under section 89(1)
is worlds apart from the kind of legislative action that the Court confronted in Oriani-Ambrosini – a wide
discretion in the centre of policy-making for the country. Despite the highly polycentric nature of legislating, that
function being in the heartland of Parliament’s domain, and the National Assembly’s greater control over its
procedures in that context, this Court nonetheless rejected the National Assembly’s assertion of a discretion to
lock out private Members’ bills by a full vote.
175 Id at paras 64-7, 75, 77 and 81.
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[134] This Court gave several rationales for this conclusion, namely that—
(a) the power of the National Assembly to make rules is a qualified power
constrained by the values of “representative and participatory democracy,
accountability, transparency and public involvement”;176
(b) representative and participatory democracy requires a genuine platform
for engagement in the process of law-making and consideration of issues
of public importance;177
(c) proper and full engagement with a matter “before its fate is decided ”
enhances transparency – an imperative that is undermined where the
National Assembly refuses permission for introduction of a Bill;178 and
(d) public participation is facilitated by processes that permit issues to be
fully venti lated, thereby cultivating an “active, informed and engaged
citizenry”,179 because “the public can only properly hold their elected
representatives accountable if they are sufficiently informed of the
relative merits of issues before the [National] Assembly”.180
[135] The same concerns arise in this case. Rule 129I permits the National Assembly
to terminate the impeachment process at a preliminary stage, before a full inquiry can
be conducted into whether a ground exists. This has the effect of foreclosing full
engagement with the merits of the motion, thereby stifling informed debate and
undermining the values of accountability and transparency that must inform the
National Assembly’s processes . This is particularly problematic given the limited
powers of the Panel.181 As this Court remarked in Oriani-Ambrosini, such gatekeeping
176 Id at para 62, quoting section 57(1)(b) of the Constitution.
177 Id at para 63.
178 Id at para 64.
179 Id.
180 Id.
181 The Panel’s function is confined to a preliminary assessment of whether sufficient information exists to warrant
further investigation. It does not conduct a full inquiry or test evidence and has no wide investi gative powers.
Yet, under rule 129I, the National Assembly may, on the basis of this limited assessment, bring the process to an
end before it has all the information at its disposal.
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by the National Assembly constitutes the unconstitutional “deployment of invincible
giants”182 as obstacles to the pursuit of constitutional ends (namely, an impeachment
motion being more fully and properly ventilated and scrutinised, and only thereaft er
decided upon by the National Assembly).183
[136] A rule allowing the National Assembly to thwart an impeachment motion at an
early stage, despite a finding that the complaint is sufficiently substantiated, would fall
foul of the Constitution for multiple reasons. It would, for example—
(a) foreclose any participation by any person or party in a further
impeachment process;
(b) bar “appropriate action” in the form of testing and examinin g evidence
and informed debate and engagement in the impeachment process “before
its fate is decided”;
(c) deny a genuine platform for the ventilation of informed views on a matter
of momentous national importance; and
(d) deprive the citizenry of the oppo rtunity to be “active, informed and
engaged” and to “properly hold their elected representatives accountable”
by not informing them “of the relative merits” of the impeachment
motion.
[137] By imposing itself as a gatekeeper through rule 129I, the National Assembly fails
in its obligation to facilitate the impeachment inquiry. When confronted with a
sufficiently substantiated impeachment motion disclosing or yielding a case to
answer,184 the National Assembly must facilitate steps to be taken in this regard and the
182 Oriani-Ambrosini above n 173 at para 64. Unlike in Oriani-Ambrosini, in this case the National Assembly is
under an obligation to see sufficiently substantiated impeachment motions disclosing or yielding a case to answer
through to an appropriate end.
183 Id, where this Court stated:
“This is achievable by, amongst other things, in terpreting section 57 as empowering the
[National] Assembly to make rules that do not constitute an inadvertent deployment of
[National] Assembly to make rules that do not constitute an inadvertent deployment of
invincible giants in a [M]ember’s path to exercising her section 55(1)(b) or section 73(2)
power.”
184 In EFF I above n 2 at para 44, this Court observed that the receipt by the National Assembly of the report of
the Public Protector “effectively operationalised the House’s obligations in terms of sections 42(3) and 55(2) of
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process to be followed, “[n]ot only at 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” .185 But how far must the National Assembly go in taking
appropriate action and how are unmeritorious motions to be treated?
[138] It is not sufficient, for purposes of the obligation to take “appropriate action”,186
for the National Assembly to proceed directly from receipt of the Report to a vote and
thereby suppress an impeachment motion that discloses, prima facie, the existence of a
ground under section 89(1).187 The National Assembly is required to do more than have
a substantiated motion merely “tabled, debate d and voted on”.188 There must be an
inquiry of some proportion or other into impeachment motions that are not plainly
unmeritorious;189 and there must be a determination as to “whether the President has
breached section 89(1)(a) or (b) of the Constitution”190 or, in terms of section 89(1)(c),
is unable to perform the functions of their office.
[139] There need not be a full -blown, exhaustive inquiry into every single
impeachment motion that survives an initial s ifting. However, where the Panel
concludes that sufficient evidence exists to disclose a prima facie case, its
the Constitution”, making the report a subject to be further treated by the National Assembly as opposed to being
susceptible to suppression.
185 EFF II above n 3 at para 181.
186 Id at para 199.
187 It may be sufficient for the National Assembly to proceed directly to a debate and vote where the chosen sifting
mechanism – under the current NA rules, the Panel – has determined the motion to lack merit. If it were otherwise,
there would be little point in having the sifting mechanism.
188 EFF II above n 3 at para 204.
188 EFF II above n 3 at para 204.
189 In EFF II, this Court declared the National Assembly pr oceeding to a vote, without a proper inquiry into the
substance of the motion, as a failure to hold the President to account. It must be recalled that this declaration was
made about the National Assembly proceeding directly to a vote upon receipt not of a preliminary Panel Report,
but a damning and far more categorical and substantiated Report by the Public Protector – the latter offering
greater scope for the National Assembly to correspondingly render a categorical decision. Yet , this Court held
the National Assembly to its obligation to satisfy itself of the veracity and seriousness of the alleged impeachment
charge by way of further investigation – this, over the remonstrations of dissent on this very score. See EFF II id
at para 266.
190 Id at para 222.
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recommendation tha t a section 89 inquiry be proceeded with must be implemented
through a referral to an Impeachment Committee, unless and until the Report is set aside
on review. This follows from the institutional design of the NA Rules, which entrusts
the preliminary sifting function to an independent body, and it would be inconsistent
with that design for the National Assembly to decline to gi ve effect to such a
recommendation.
[140] It may be that the evidentiary basis underpinning such a motion – despite being
found prima facie , substantial and credible by the independent sifting mechanism
(currently, the Panel) – cannot survive initial scrutiny b y the inquiry (currently, the
Impeachment Committee).191 Once seized with the matter, the Impeachment
Committee performs a distinct investigative function and, subject to the NA Rules,
particularly rule 129M, retains control over its own proceedings and the scope of its
inquiry. It may therefore become apparent, even at an early stage, that the evidentiary
foundation underpinning the charges cannot sustain a finding that the alleged conduct
will be established.
[141] In such an instance, if appropriately regulated by the NA Rules, the termination
of the inquiry without a full-blown “trial” may well be justified.192 This possibility does
not qualify the obligation of referral following a positive prima facie finding; it reflects,
191 For example, a scenario where witnesses identified in the motion or by the Panel collapse under
cross-examination, leaving the motion without a sufficient evidentiary predicate to sustain the charge, result s in
an early report by the relevant struct ure tasked with conducting the inquiry (currently the Impeachment
Committee). Albeit not identical, such an early termination of the inquiry could be compared – conceptually – to
a section 174 discharge under the Criminal Procedure Act 51 of 19 77 or absol ution from the instance in civil
proceedings. Further, if the mandated structure – currently the Impeachment Committee – concludes early on that
there is actually no merit to the motion, then it could resolve at that point that the impeachment inquiry be
terminated and recommend that the National Assembly “determine” that no ground exists. This conclusion applies
both at the level of constitutional law and to the current dispensation under the NA Rules. In terms of rule 129M,
the Impeachment Committee must conduct its inquiry in a reasonable and procedurally fair manner and within a
reasonable timeframe. It is inquisitorial in nature, and the process is flexible. Thus, subject to the obligation to
“take appropriate action”, the standards of lawfulness a nd rationality and what the NA Rules provide for in
regulating such termination, the inquiry could be brought to an end at any time. In other words, the Impeachment
Committee may be entitled to terminate its proceedings – and make a corresponding recommendation to that effect
to the National Assembly – on the basis that the charges could not possibly be established.
192 For a discussion of adequacy in the context of analogous internal investigations , see Herd and Murcott “The
Uncertain Constitutional Duty to Internally Investigate and Remedy State Impropriety” (2023) 34 Stellenbosch
Law Review 27 at 51-2.
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instead, the distinct institutional roles of the Panel and the Impeachment Committee –
the former determining whether there is a case to answer, and the latter determining
whether that case can ultimately be sustained.
[142] This construction of section 89 abides by the scheme established by this Court
in EFF II. It also leaves the National Assembly’s ultimate and exclusive
decision-making power intact; catalyses the National Assembly’s representative and
democratic machinery after an adequate accountability and tra nsparency-focused
process has been carried out; and gives effect to the values of “representative and
participatory democracy, accountability, transparency and public invol vement”
contemplated by section 57(1)(b) of the Constitution.
[143] This is in contrast w ith rule 129I which installs the National Assembly as a
gatekeeper – the very invincible giant that this Court has warned of.193 With power
exclusively in the hands of the National Assembly, functioning as a collective body ,194
there is a high risk of section 89(1) being paralysed ,195 thus making it easy for the
President to escape consequences. 196 Instead of ensuring accountability and
transparency, rule 129I gives the National Assembly an ability to frustrate and thwart
subsequent steps in the process which would enable it and the public to make informed
decisions in the fulfilment of their obligations and exercise of their rights. In this case,
the mechanism designed and chosen by the National Assembly is both an ineffective
one and one that undermines key constitutional values that it is required to live up to.
[144] This is a breach of the constitutional obligations imposed upon t he National
Assembly by section 89(1) of the Constitution , that is, to put in place an effective
mechanism and to take appropriate action to hold the President accountable in terms of
that section. Rule 129I is, therefore, inconsistent with the Constitution and invalid.
that section. Rule 129I is, therefore, inconsistent with the Constitution and invalid.
193 Oriani-Ambrosini above n 173 at para 64.
194 Id at para 66.
195 Id.
196 UDM v Speaker above n 55 at para 12.
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The validity of the NA vote
[145] The vote must follow in the rule’s footsteps. It is defective because it was taken
in a manner inconsistent with the Constitution. As explained above, it is proscribed for
the National Assembly to prematurely gatekeep within the first stage o f the section 89
impeachment process.
[146] This conclusion applies with as much force to the vote taken pursuant to the rule
as it does to the rule, irrespective of the rationale actuating each individual vote cast by
Members of Parliament. What matters is that legally , the vote and the rule are on the
same constitutional footing, and so the one must follow the other. The vote was
influenced by a material error of law.197 It is therefore inconsistent with the Constitution
and must accordingly fall.198
[147] This is sufficient to vitiate the vote. Since a majority of this Court concludes that
it was not constitutionally permissible for the National Assembly to vote on the Report
at the stage it did, it is unnecessary to consider whether such a vote, had it been
constitutionally permissible, was impeachable on grounds of irrationality.
Just and equitable remedy
[148] It remains to consider what remedy would be just and equitable in the
circumstances. As this Court pronounced in Mazibuko v Sisulu—
197 See Hoexter and Penfold above n 144 at 395-8. An instructive, analogous precedent is Genesis Medical Aid
Scheme v Registrar , Medical Schemes [2017] ZACC 16; 2017 (6) SA 1 (CC); 2017 (9) BCLR 1164 (CC)
(Genesis). In that matter, this Court dealt with the policy posture of the Registrar of Medical Schemes on the
import of section 35 of the Medical Schemes Act 131 of 1998 as reflected in circulars issued by the Registrar.
The policy posture was informed by the High Court’s interpretation of that section in Registrar of Medical
Schemes v Ledwaba N.O., unreported judgment of the Gauteng High Court, Case No 18545/06 (30 January 2007)
(Omnihealth) and was on the same footing as that High Court judgment. This Court differed with the High Court,
and overturned Omnihealth. See Genesis at para 22. By extension, incorporating the Omnihealth error of
interpretation as it did, the Registrar’s policy posture reflected in the circulars was bad in law.
198 In the words of this Court, “[w]hen Omnihealth tumbles, as it must, [the circulars] must tumble too.” Genesis
id at para 62. By parity of reasoning, if t he EFF’s challenge to rule 129I is successful, then “[w]hen [rule 129I]
tumbles, as it must, [the NA vote] must tumble too”.
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“once we have found, as we have, that the rules . . . are unconstitutional, we must so
declare. An order of constitutional invalidity is not discretionary. Once the Court has
concluded that any law or conduct is inconsistent with the Constitution, it must declare
it invalid.”199
[149] The declaration of invalidity , consequent upon a finding of invalidity , is
therefore non-negotiable for this Court.200 What is discretionary is the remainder of any
remedy that might be sought or warranted. This Court possesses wide remedial
competence under section 172(1)(b) of the Co nstitution to craft a “just and equitable”
remedy that is fair and just within the context of the particular dispute. 201 This power
has repeatedly been described as “ample” and “flexible” – extending even beyond the
pleadings where necessary to vindicate co nstitutional rights and the rule of law. 202 In
Fose,203 this Court emphasised that constitutional remedies may require innovation. In
later cases, it has stressed that substance must prevail over form, and that remedies must
resolve the real dispute in a constitutionally compliant manner.204
199 Mazibuko v Sisulu above n 62 at para 70.
200 Section 2 of the Constitution provides:
“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled.”
Section 172(1)(a) of the Constitution is, then, the judicial mechanism by which section 2’s consistency injunction
is actualised and enforced, requiring that—
“[w]hen deciding a constitutional matter within its power, a court must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency”.
Under section 172(1)(a), this Court has no discretion. It is obliged to declare inconsistency invalid once
established. See EFF I above n 2 at para 103. See also Khumalo above n 97 at para 53 and Electoral Commission
v Mhlope above n 137 at para 129.
201 Section 172(1)(b) of the Constitution provides that—
“[w]hen deciding a constitutional matter within its power, a court—
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect”.
202 Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) (Hoërskool Ermelo) at para 97 and EFF II above n 3 at paras 210-11.
203 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at
para 69.
204 Hoërskool Ermelo above n 202 at para 97.
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[150] That said, however, the power is not limitless. This Court emphasised, in
Corruption Watch, that just and equitable relief must remain tethered to the constraining
factors of justice and equity, and continued thus:
“There is no preordained consequence that must flow from our declarations of
constitutional invalidity. In terms of section 172(1)(b) of the Constitution we may
make any order that is just and equitable. The operative word ‘any’ is as wide as it
sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the
very two factors stipulated in the section – justice and equity. This Court has laid down
certain principles in charting the path on the exercise of discretion to determine a jus t
and equitable remedy.
What must be paramount in the relief that a court grants is the vindication of the rule
of law. The effect of that is the reversal of the consequences of the constitutionally
invalid conduct.”205
[151] It is important to acknowledge at the outset in a case such as this that the National
Assembly traditionally and constitutionally enjoys primacy in regulating its “internal
arrangements, proceedings and procedures” through its “rules and orders concerning its
business”.206 This recognition cleaves to the exclusive jurisdiction assessment, since
judicial review of Parliament’s internal procedures “trenches on the autonomy of
Parliament to regulate its own affairs and thus the principle of separation of powers”.207
Judicial review of a case of this nature by this Court is, therefore, permissible. However,
this Court must be scrupulously circumspect in crafting its order.
[152] This case, in part, concerns the NA Rules. This Court made it clear in Mazibuko
v Sisulu that it would constitute overreach for it to embark on a substantial formulation
of rules such that it substitutes the policy choices of the National Assembly for its own.
There, the majority held that the judicial review of and a declaration of invalidity
There, the majority held that the judicial review of and a declaration of invalidity
striking at provisions of the NA Rules—
205 Corruption Watch above n 144 at paras 68-9.
206 Section 57(1)(a) and (b) of the Constitution.
207 Doctors for Life above n 19 at paras 26-7.
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“would not be invasive be cause it is declaratory in kind . T he Court would not be
formulating rules for the [National] Assembly. The Court would be properly requiring
the [National] Assembly to remedy the constitutional defect that threatens the right of
[M]embers of the [National] Assembly”.208
[153] But that does not mean that the remedy of reading-in is never available when the
rules of a legislature are impugned. Reading-in is, ultimately, a corollary of severance
and can be utilised where “just and equitable”.209
[154] That said, this Court is enjoined, as are all courts, to “endeavour to be as faithful
as possible to the [existing] legislative scheme within the constraints of the
Constitution”.210 Importantly, under the current NA Rules, an impeachment motion that
reaches the National Assembly as a vote on removal must, prior to such a vote, be—
208 Mazibuko v Sisulu above n 62 at para 71.
209 National Coalition above n 123 at paras 73-5, which held:
“Having concluded that it is permissible in terms of our Constitution for this Court to read words
into a statute to remedy unconstitutionality, it is necessary to summarise the princ iples which
should guide the court in deciding when such an order is appropriate. In developing such
principles, it is important that the particular needs of our Constitution and its remedial
requirements be constantly borne in mind.
The severance of word s from a statutory provision and reading words into the provision are
closely related remedial powers of the Court. In deciding whether words should be severed
from a provision or whether words should be read into one, a court pays careful attention first ,
to the need to ensure that the provision which results from severance or reading words into a
statute is consistent with the Constitution and its fundamental values and secondly, that the
statute is consistent with the Constitution and its fundamental values and secondly, that the
result achieved would interfere with the laws adopted by the Legislature as little as possible. In
our society where the statute books still contain many provisions enacted by a Parliament not
concerned with the protection of human rights, the first consideration will in those cases often
weigh more heavily than the second.
In deciding to read words into a statute, a court should also bear in mind that it will not be
appropriate to read words in, unless in so doing a court can define with sufficient precision how
the statute ought to be extended in order to comply with t he Constitution. Moreover, when
reading in (as when severing) a court should endeavour to be as faithful as possible to the
legislative scheme within the constraints of the Constitution. Even where the remedy of reading
in is otherwise justified, it ough t not to be granted where it would result in an unsupportable
budgetary intrusion. In determining the scope of the budgetary intrusion, it will be necessary
to consider the relative size of the group which the reading in would add to the group already
enjoying the benefits. Where reading in would, by expanding the group of persons protected,
sustain a policy of long standing or one that is constitutionally encouraged, it should be preferred
to one removing the protection completely.”
210 Id at para 75.
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(a) screened for compliance by the Speaker;211
(b) assessed for sufficiency and merit by the Panel;212
(c) considered by the National Assembly on the question of referral for an
inquiry;213 and
(d) examined by an Impeachment Committee.214
[155] The declaration of invalidity in this case strikes at the third step. Without any
ancillary remedial interventions, a legal vacuum would open up , and there would no
longer be a rule governing how an impeachment motion would progress from the Panel
to the Impeachment Committee, if it progresse s at all. Such a lacuna would itself be
unconstitutional because “[w]ithout rules defining the entire process, it is impossible to
implement section 89”.215 It follows that a limited severance coupled with reading -in
is not only appropriate, but necessary.
[156] There can scarcely be a more deferential order than severing the offending
provisions and importing a narrowly tailored reading -in solely to bridge a procedural
gap in the wake of a declaration of invalidity. Such an order preserves the National
Assembly’s own pre -existing legislative choices, while abiding by the Constitution.
This is what this Court said in Arena Holdings.216
[157] In that matter, this Court confirmed the High Court’s declaration of invalidity in
respect of provisions of the Promotion of Access to Information Act217 (PAIA) and the
Tax Administration Act 218 (TAA) to the extent that those legislative dispensations
211 Rules 129A-129C.
212 Rule 129G.
213 Rule 129I.
214 Rule 129J.
215 EFF II above n 3 at para 182.
216 Arena Holdings (Pty) Ltd t/a Financial Mail v S outh African Revenue Service [2023] ZACC 13; 2023 (5) SA
319 (CC); 2023 (8) BCLR 905 (CC).
217 2 of 2000.
218 28 of 2011.
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completely prohibited the disclosure of taxpayer information to the public 219 and
“totally immunised” such information from a public interest disclosure override
embedded in section 46 of PAIA.220
[158] This Court held that it was not justified to cloak all taxpayer information in
absolute secrecy all the time and that there had to be a mechanism in place to regulate
its disclosure.221 However, with the declaration of invalidity threatening a legislative
lacuna,222 this Court was faced with a choice of remedial options, including:
(a) to innovate and insert into the statutory scheme its own test for the
disclosure of taxpayer information, thereby reaching further into the
National Assembly’s domain than required (albeit for the interim) and in
the process breaching the separation of powers; or
(b) to suspend the declaration of invalidity to allow the National Assembly to
craft its own disclosure test in line with the judgment and thereby meet
the imperative of deferring to the National Assembly in its legislative role,
but deny the parties (and every other person with standing) constitutional
relief for the entirety of the period of the suspension.
[159] Neither option was suitable on its own. This Court then carved a course to
provide immediate and effective relief to the parties, while ensuring comity. This Court
coupled a reading -in to its order of severance and cured the defect “with the least
interference” by “merely extend[ing ] the Legislature’s existing formulation of
section 46 of PAIA”, 223 inserting a section number into section 46 of PAIA and
cross-referencing that section to the TAA. 224 Thus, th is Court utilised the National
219 Arena Holdings above n 216 at para 195.
220 Id at para 148.
221 Id at para 141.
222 Neither a prohibition on the disclosure or accessing of taxpayer information , thereby allowing circumscribed
dissemination, nor a mechanism to ensure access where justified , would have existed once this Court issued its
order.
223 Arena Holdings above n 216 at para 199.
224 Id at para 205, where this Court ordered, among others, that:
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Assembly’s own legislative mechanism as the s olution in deferring to its pre -existing
legislative choices, while upholding constitutional supremacy.225 A similar, deferential
solution of invalidating and reading-in with “the least interference” can be achieved in
this case.
[160] Just as the section 46 override in Arena Holdings obviated an extensive
reading-in, such that all that was required was bridging the gap to that section, an
extensive reading-in is unnecessary here because the National Assembly has already
adopted a means for the receipt and collection, examination, testing and evaluation of
evidence into the rules – the Impeachment Committee. All that is required is the textual
bridging of the step at which the Panel renders its report . If the Panel concludes that
the motion is meritorious, the motion should automatically proceed to the Impeachment
Committee without an intervening vote by the National Assembly.
“Pending any measures Parliament might take to address the constitutional invalidity, the
impugned provisions shall be read as follows:
(a) Section 46 of PAIA shall read:
‘46 Mandatory disclosure in public interest.— Despite any other provision of this
Chapter, the information officer of a public body must grant a request for
access to a record of th e body contemplated in section 34(1), 35(1), 36(1),
37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3),
43(1) or (2), 44(1) or (2) or 45, if—
(a) the disclosure of the record would reveal evidence of—
(i) a substantial contravention of, or failure to comply with, the
law; or
(ii) an imminent and serious public safety or environmental
risk; and
(b) the public interest in the disclosure of the record clearly outweighs
the harm contemplated in the provision in question.’
(b) Subsection 69(2) of the TAA shall be read as if it contained an additional
paragraph (bA) after the existing paragraph (b):
paragraph (bA) after the existing paragraph (b):
‘(bA) where access has been granted for the disclosure of the information in terms of
the Promotion of Access to Information Act 2 of 2000’
(c) Section 67(4) of the TAA shall be read as if the phrase ‘unless the information has
been received in terms of the Promotion of Access to Information Act 2 of 2000 ’
appeared immediately before the full stop.”
225 Id.
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[161] The entirety of this exercise would occur within the bounds of the impugned
rule 129I. The severance and reading-in combination would involve no—
(a) major textual surgery that would be fraught with complications , thereby
making severance impracticable;226
(b) substitution of the National Assembly’s policy choices on mechanism,
save to exclude the impermissible;
(c) enduring prescriptions to the National Assembly as to what it should
insert into the mechanistic gap, if any;227 and
(d) substantial interference with or augmentation of the architecture and
scheme of that mechanism, or its foundational definitions and thresholds.
[162] If anything, the remedy preserves the National Assembly’s pre-existing choices
and leaves everything else to it. Severing the offending provisions and introducing the
reading-in for an indefinite period, but subject to amendment by the Legislature, is an
important feature of any constitutional relief interfering with statutory language. This
is so because a court’s word in this regard is not final.228 This Court acknowledged this
fact thus:
“Legislatures are able, within constitutional limits, to amend the remedy, whether by
re-enacting equal benefits, further extending benefits, reducing them, amending them,
‘fine-tuning’ them or abolishing them. Thus they can exercise final control over the
nature and extent of the benefits.”229 (Footnotes omitted.)
[163] As this Court explained in Bhe:230
226 Premier, Limpopo Province v Speaker of the Limpopo Provincial Legislature [2012] ZACC 3; 2012 (4) SA 58
(CC); 2012 (6) BCLR 583 (CC) at para 23.
227 In effect, all that is communicated is what is impermissible under the Constitution.
228 National Coalition above n 123 at para 76.
229 Id.
230 Bhe v Magistrate Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the
Republic of South Africa [2004] ZACC 17; 2005 (1) BCLR 1 (CC); 2005 (1) SA 580 (CC).
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“The Court must accordingly fashion an effective and comprehensive order that will
be operative until appropriate legislation is put in place. Any order by this Court should
be regarded by the Legislature as an interim measure. It would be undesirable if the
order were to be regarded as a permanent fixture.”231
[164] This is true of the order I would propose to make in this instance. It draws the
constitutional boundaries, and within them the National Assembly retains control, able
to choose whether to retain the reading-in for as long as it wishes to, adjust or augment
the reading-in, or devise a new mechanism in light of the Court’s pronouncement.
[165] Regarding whether a suspension of the declaration of invalidity of rule 129I is
warranted, the impeachment motion must return to the National Assembly and be
treated in a constitutional manner. Although a suspension of a declaration of
constitutional invalidity is sanctioned by section 172(1)(b) of the Constitution, such
suspension is permissible only if it constitutes just and equitable relief. In this instance,
a suspension would not be just and equitable as it would merely result in the return of
the decision to the National Assembly under the same ineffective rule, with a high risk
of a repeat of the same inappropriate action. The proposed remedy is an efficient means
of foreclosing any lacuna incidental to the invalidity and any prejudice flowing
therefrom.
[166] Furthermore, suspending the declaration of invalidity of rule 129I and halting
the National Assembly’s reconsideration of the impeachment motion in this case would
unduly delay a process of accountability that should otherwise be accorded prompt
attention.232 On this score, EFF II observes that “[t]he Constitution dem ands of all
those on whom it imposes obligations, to fulfil them diligently and without delay. It is
the duty of this Court to ensure that this injunction is followed.”233
231 Id at para 116.
232 See Mazibuko v Sisulu above n 62 at para 66, discussing the similar device of a motion of no confidence under
section 102 of the Constitution.
233 EFF II above n 3 at para 217.
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[167] Summing up the position on the relationship between suspending a declar ation
of invalidity and reading-in, this Court, in J v Director General,234 held:
“Where the appropriate remedy is reading in words in order to cure the constitutional
invalidity of a statutory provision, it is difficult to think of an occasion when it would
be appropriate to suspend such an order. This is so because the effect of reading in is
to cure a constitutional deficiency in the impugned legislation. If reading in words does
not cure the unconstitutionality, it will ordinarily not be an appropriate remedy. Where
the unconstitutionality is cured, there would usually be no reason to deprive the
applicants or any other persons of the benefit of such an order by suspending it.
Moreover the Legislature need not be given an opportunity to remedy the defect, which
has by definition been cured. In the present case, the effect of the order is not to leave
a lacuna but to remedy the constitutional defect complained of by the applicants by a
combination of reading in and striking down. Under the circumstances, it is not an
appropriate case for our order to be suspended.”235
[168] It would be just and equitable, in addition to the declaration of invalidity and
reading-in, to direct the National Assembly to itself carry out the task that the
Constitution requires of it and correc t the defect in the affected rule, but without any
delay occasioned by a de novo vote awaiting amendments to the NA Rules. Instead,
the vote should be referred to the Impeachment Committee consistent with the
reading-in remedy ordered.
[169] This relief seeks neither to displace the National Assembly’s constitutional role,
nor entrench judicial supervision beyond the necessary extent. Rather, it aims to restore
constitutional accountability by removing the impermissible procedural hurdle, whilst
leaving the substance of the relevant exercise of power to the National Assembly.
leaving the substance of the relevant exercise of power to the National Assembly.
[170] This approach respects the separation of powers for several reasons. It avoids
an extensive judicial formulation of parliamentary rules and leaves the content and
234 J v Director General, Department of Home Affairs [2003] ZACC 3; 2003 (5) BCLR 463 (CC); 2003 (5) SA
621 (CC).
235 Id at para 22.
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design of the amended rule to the National Assembly itself.236 Furthermore, it does not
substitute th is Court’s judgment for that of the National Assembly on the ultimate
question of impeachment. Instead, it requires the National Assembly to fulfil its
constitutional responsibilities lawfully and rationally, without dictating the substantive
outcome once the Impeachment Committee ’s report has been referred to the National
Assembly.
[171] Importantly, this remedy recognises that the constitutional failure in this case lies
not in the National Assembly’s eventual determination of whether a removal of the
President from office should occur, but in its use of a procedurally defective rule to
block the process at a preliminary stage. By removing that block an d requiring the
National Assembly to act again, within constitutional bounds, th is Court vindicates
constitutional supremacy without collapsing the distinction between judicial review and
parliamentary decision -making. It restores constitutional accountab ility in a manner
that is principled, restrained and effective by correcting an unconstitutional rule and, by
default, nullifying the resultant parliamentary decision, and returning the matter to the
National Assembly to act in accordance with the Constitu tion. Anything less would
risk allowing an unconstitutional avoidance of accountability to persist under the guise
of institutional deference.
Costs
[172] The EFF initially sought costs, including the costs of two counsel where so
employed. The ATM also asked for costs and sought those of three counsel where so
employed. However, both parties changed their stance at the hearing. The EFF seeks
a Biowatch costs order on the premise that it seeks to protect and enforce its
constitutional rights and should, therefore, be shielded from the costs of an unsuccessful
application and awarded costs, including the costs of three counsel where so employed,
application and awarded costs, including the costs of three counsel where so employed,
if it should be successful. The ATM no longer seeks costs against the respondents and
asks that no costs be ordered against it should it be unsuccessful.
236 Mazibuko v Sisulu above n 62 at para 71.
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[173] The EFF has been successful in its application and should be awarded its costs,
though not the costs of three but two counsel where so employed , having regard to the
merits of the matter. The opposing parties, the f irst to fourth respondents, must bear
those costs.
Order
[174] The order I would have granted is almost identical to the one of the Court above.
The only difference is that I would have declared that this Court has exclusive
jurisdiction over the challenge to the NA vote. For these reasons, and the reasons given
above, I support the order of the Court. I would have made the following order:
1. This Court has exclusive jurisdiction to hear the application.
2. It is declared that rule 129I is inconsistent with the Constitution, invalid
and set aside.
3. Pending any amendment, rule 129I shall read as follows (with the words
struck out being severed and the underlined words being inserted into that
rule):
“Rule 129I Consideration and referral of panel report
(1) Once the panel has reported the Speaker must schedule the report
for consideration by the Assembly, with due urgency, given the
programme of the Assembly inform the Assembly of the report.
(2) The President must be informed of the scheduling and any decision
on provided with a copy of the report forthwith.
(3) In the event the Assembly panel resolves concludes that a
Section 89(1) enquiry be proceeded with sufficient evidence exists
as contemplated in Rule 129G, the matter must be referred to the
Impeachment Committee established by this rule (or by the
National Assembly Rules) for that purpose.
(4) In the event the panel concludes that sufficient evidence does not
exist as contemplated in Rule 129G, the Speaker must schedule the
report for consideration by the Assembly; and in the event the
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Assembly nonetheless resolves that a Section 89(1) enquiry be
proceeded with, the matter must be referred to the Impeachment
Committee established by this rule (or by the National Assembly
Rules) for that purpose.”
4. The severance and reading -in in paragraph 3 of this order shall apply
subject to any amendment by the National Assembly.
5. Pending any amendment of the NA Rules, to the extent that any of the
other NA Rules are, by implication, affected by the reading -in in
paragraph 3 of this order, those rules shall be read consistently with
paragraph 3 of this order mutatis mutandis.
6. It is declared that the vote of the National Assembly taken on
13 December 2022, declining to refer the Report of the Independent Panel
to an Impeachment Committee as envisaged in the NA Rules is
inconsistent with the Constitution, invalid and set aside.
7. The Report of the Independent Panel is referred to the Impeachment
Committee established in terms of the NA Rules.
8. The first to fourth respondents are ordered to pay the costs of the first
applicant, including costs of two counsel where applicable.
KOLLAPEN J (Mathopo J, Seegobin AJ and Tshiqi J concurring):
Introduction
[175] More than 30 years into democracy , we understandably continue to debate and
examine key features of our democratic system in our transformative trajectory. This
case highlights an issue of significance that transcends the interests of the litigating
parties. The narrow issue engages the NA Rules and the processes that apply to the
removal of the President under section 89 of the Constitution. That issue, however, is
best understood when it is located within a broader examination of our constitutional
model. And, in particular, how this model navigates the power that elected majorities
may wield within the constitutional space, as well as the constraints that the Constitution
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legitimately places on the exercise of such power. All of this plays itself out on the
canvas of a composite cons titutional text that evidences our transition from an unjust
and unequal society to one premised on democratic values.
[176] I have read the carefully -structured and well -reasoned judgments of my
Colleagues Maya CJ (first judgment) and Majiedt J (third judgment) in which both
uphold the challenge to the constitutionality of rule 129I of the NA Rules, but for
different reasons. The first and third judgments also set aside the NA vote as a result
of the unconstitutionality and invalidity of the rule.
[177] These judgments deal with a number of preliminary issues, including the
exclusive jurisdiction of this Court, the lateness of the challenge brought by the
applicants and whether the relief sought is moot. I intend to address my disagreement
with the first and third judgments by separating out the challenge to the constitutionality
of rule 129I (rule challenge), on the one hand, and the challenge to the NA vote
(vote challenge), on the other. I do so since different considerations apply to those
challenges, even though there are some commonalities.
[178] The first judgment provides a comprehensive overview of the background to the
application, the legal framework that is applicable, as well as an overview of the parties’
submissions. I do not intend to repe at them, save to the extent that it is necessary to
advance the reasoning in this judgment. I will , however, indicate where I take a
different view on the interpretation of the legal framework as invoked by the
first judgment.
[179] By way of summary, I set out hereunder the conclusions I reach.
[180] I agree that our exclusive jurisdiction is engaged in the rule challenge but not for
the reasons advanced in the first judgment. Section 89 locates the exclusive power to
remove the President with the National Assembly. To discharge this responsibility, this
remove the President with the National Assembly. To discharge this responsibility, this
Court, in EFF II, concluded that the National Assembly has the constitutional obligation
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to develop rules and a mechanism to facilitate the removal of the President. This Court
has the exclusive jurisdiction to determine whether the National Assembly has
discharged that responsibility. It is on this basis that I conclude that our exclusive
jurisdiction is engaged in respect of the challenge to the rule.
[181] On delay and mootness, I take the view that neither arise . A challenge to the
constitutionality of the rule is not time -bound and, in addition, can never be moot, for
as long as the rule continues to endure, then any challenge to its constitutionality will
continue to remain relevant and timely.
[182] On the merits, I disagree with the first judgment that section 89 creates a
constitutional obligation to hold the President accountable and that the constitutionality
of the rule must be assessed in accordance with that obligation. The only obligation
section 89 create s is for the National Assembly to put in place a mechanism in the
NA Rules to facilitate the removal of the President, if the National Assembly so elects.
It is against that objective that the rule falls to be assessed. In this way, I accept that
section 89 is a tool of accountability, in that it grants the National Assembly the
permissive power to remove the President, but that does not translate into a
constitutional obligation to hold the President accountable. In other words, should a
section 89 process unfold and culminate in the removal of a President, all of which
constitutes the exercise of permissive powers, accountability is achieved to the extent
that it enables the National Assembly to sanction the President where a section 89(1)
removal ground has been established.
[183] Following my finding that our exclusive jurisdiction is engaged by this part of
the challenge, I conclude that rule 129I is not unconstitutional in that it properly
recognises and gives effect to how the permissive power of the National Assembly to
recognises and gives effect to how the permissive power of the National Assembly to
remove the President is to be operationalised.
[184] With regard to the challenge to the vote, I persist with my view that section 89
creates a permissive power on the part of the National Assembly to remove the
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President. As such, the vote in question constitutes the exercise of a permissive power
by the National Assembly. There is no constitutional obligation on how Members may
vote under the rule and our exclusive jurisdiction is accordingly not engaged under
section 167(4)(e). Lastly, given my view that the challenge to the vote is one based on
the rationality and/or the legality of the vote which is unconnected to the
constitutionality of rule 129I, our exclusive jurisdiction is also not engaged.
[185] There are two fundamental and insurmountable contradictions in the outcome
arrived at by the first and third judgments.
[186] First, both judgments conclude that the rule must be impugned because it allows
the National Assembly to impermissibly shut down the preliminary inquiry when the
Panel recommends that it ought to proceed. Both judgments also conclude that the NA
vote must be set aside in that it was taken in terms of an unconstitutional rule. But this
conclusion is not founded in law nor the reasoning of the first and third judgment s.
First, it cannot be that a vote taken in terms of an unlawful rule is automatically
impugned by virtue of the unlawfulness of said rule. This very point is illustrated by
the first and the third judgments. Despite the reasons posited for the unconstitutionality
of the rule in each of these decisions, the rule, in its current form, may still yield lawful
votes by the National Assembly. This would occur in the circumstances where the
National Assembly accepts a positive recommendation of the Panel and the matter
proceeds to the Impeachment Committee, or where it refuses to accept a negative
recommendation of the Panel and the matter proceeds to the Impeachment Committee
despite the Panel’s finding.
[187] With the above in mind, I am of the view that, whilst an act taken in terms of an
unlawful empowering provision may be invalidated where the empowering provision
unlawful empowering provision may be invalidated where the empowering provision
is declared unlawful, this should not be considered automatic. This finding is supported
by this Court’s decision in Corruption Watch when it said that “if the first act is set
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aside, a second act that depends for its validity on the first act must be invalid”.237 There
are no reasons proffered in the first or third judgments to support the position that the
validity of the second act in these circums tances, being the NA vote, necessarily
depends on the validity of the first, being the rule. I have, in any event, shown that the
rule is capable of producing valid votes by the National Assembly despite the
invalidation of the rule.
[188] I also note that the same outcome as a declaration of invalidity, as ordered in the
first and third judgments, may be achieved through a rationality challenge to the vote.
And so, this raises the inevitable question – why unnecessarily impugn the rule when
the same outcome may be achieved through a challenge to the NA vote?
[189] Second, the order proposed by the first and third judgments would obligate the
National Assembly to accept a positive recommendation from the Panel, but would
allow it the discretion to overturn a negative recommendation from the Panel, if need
be. There can be no conceivable reason for this contrasting approach to positive and
negative recommendations from the Panel. It recognises the validity of the National
Assembly’s power to grapple with a negative recommendation from the Panel, whilst
denying it the exercise of such power when a positive recommendation is made. This
contradiction lends support to my conclusion that the source of the first and
third judgments’ discomfort can be addressed through a challenge to the NA vote,
without impugning the rule.
[190] Before addressing the two substantive challenges, I provide some necessary
context within which this dispute must be located. It relates to what I refer to as the
relationship between majoritarianism and counter -majoritarianism, and how the
Constitution allocates power arising out of that relationship. The former denotes, in the
main, a system of government where the will of the majority prevails in most decisions
main, a system of government where the will of the majority prevails in most decisions
237 Corruption Watch above n 144 at para 33 (emphasis added).
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and where there are limited restraints on the power that the majority may wield.238 The
latter system is one characterised by restraints on the power of the majority, and where
the Constitution and courts play a more visible and active role in policing the exercise
of that power.239
[191] Thereafter, I consider the principles associated with t he removal and
accountability of the President.
Majoritarianism and counter-majoritarianism
[192] It is important to provide a broad context, both constitutional and political, within
which this dispute falls to be adjudicated. The narrow issue s before this Court are the
constitutionality of the NA Rules that regulate the removal power afforded to the
National Assembly by section 89 of the Constitution and the concomitant NA vote. My
Colleagues and I arrive at largely divergent conclusions. Ordinarily, this would not be
unusual, but in doing so we should strive to arrive at a common understanding of the
constitutional context within which the dispute is adjudicated. I attempt to capture that.
[193] In modern democracies, particularly those emerging from an authori tarian and
undemocratic past such as ours, counter -majoritarianism is an attractive constitutional
option. It is seen as providing the necessary constraints on how a majority may exercise
power and contributes to the idea of an inclusive political model t hat is broadly
accommodating of all. 240 However, in many of those contexts , the outgoing regime
may insist on counter -majoritarian guarantees which could be used in either a
democracy-enhancing or democracy -subverting manner , as the case may be. 241
Alongside this must also be the recognition that , at the very heart of democracy , is the
power of the people to make free and informed choices about who should represent and
238 Transport and Allied Workers Union of South Africa v Putco Ltd [2016] ZACC 7; 2016 (4) SA 39 (CC); 2016
(7) BCLR 858 (CC) at para 61.
239 Levitsky and Ziblatt “When Should the Majority Rule?” (2025) 36 Journal of Democracy 5 at 6.
240 Id.
241 Id at 7-8.
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govern them, investing in them the powers necessary to do so. Often, the results of this
tension are models of governance and constitutionalism that incorporate elements of
both majoritarianism and counter -majoritarianism. John Rawls argues that majority
rule remains an essential component of democratic decision -making, but it opera tes
within a framework of principles that constrain what majorities may do.242 In this sense,
he offers a justification for constitutional democracy that neither abandons
majoritarianism, nor treats it as sufficient.
South Africa’s transition to democracy
[194] Nicholas Haysom highlights the political stakes implicit in these two democratic
models. He says that in negotiating the constitutional settlement, South African actors
were acutely aware of the risks associated with both unrestrained majority rule and
excessive minority vetoes. 243 The resulting constitutional design reflects a deliberate
effort to balance these concerns by entrenching a robust system of rights, judicial review
and institutional checks, while preserving the central role of electoral democra cy. The
aim was not to displace the will of the majority, but to ensure that it would be exercised
within a framework that protects all members of the political community. 244
[195] In the South African context, we need no reminding of our painful past when,
for millions of our people, the right to vote was shut out. When the vote was finally
won, it represented a powerful symbol of the new nation, the restoration of the dignity
of so many and a real opportunity for change. Therefore, we must understand
majoritarianism within this historical fabric and pay due regard to its telling expression
and place in the Constitution.
242 Rawls A Theory of Justice revised edition (The Belknap Press of Harvard University Press, Cambridge 1999)
at 312-13.
at 312-13.
243 Haysom “Conflict Resolution, Nation-Building & Constitution-Making” (2005) 19 New England Journal of
Public Policy 151 at 163-4.
244 Id.
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[196] We must therefore, at a doctrinal level, avoid seeing counter-majoritarianism as
necessarily democracy -enhancing and majoritarianism as neces sarily democracy -
subverting. Just as majoritarianism may threaten to override the rights and interests of
smaller groups, counter-majoritarianism may subvert democracy by over -emphasising
these interests – and may even give minorities power considerably i n excess of the
legitimate outcome of the electoral process. While there are not always clear lines in
how we are to deal with the tension between majoritarianism and counter -
majoritarianism,245 we must respect those lines where we find them in the Constitution.
The expression of majoritarianism and counter -majoritarianism in the
Constitution
[197] The Constitution balances political majoritarianism by establishing a supreme
Constitution,246 a justiciable Bill of Rights, 247 independent courts, 248 independent
human rights and accountability bodies 249 and a multi -party system that protects
minority voices.250 Similarly, the Constitution firmly entrenches the participation of the
public in law and policy -making.251 In totality , these provisions constrain how the
245 Id.
246 See section 1(c) and (d) of the Constitution, which establishes constitutional supremacy rather than
parliamentary sovereignty and requires the rule of law, regular elections and a multi -party system of democratic
government.
247 See chapter 2 of the Constitution, which protects individual and minority rights against majority decisions,
including equality (section 9), human dignity (section 10) and freedom of expression (section 16).
248 See section 165(2) of the Constitution, which guarantees the independence of courts; and section 167(5) of the
Constitution which grants this Court final jurisdiction to decide on the constitutionality of any law or conduct of
the President or Parliament, allowing it to strike down majority-driven decisions where unconstitutional.
249 See chapter 9 of the Constitution, which establishes bodies like the Public Protector and the South African
Human Rights Commission to strengthen democracy by investigating abuses of power by the ruling majority.
250 See section 57(2)(b) of the Constitution, which ensures that the National Assembly is constituted through a
system that allows minority parties representation pro portional to their support, reducing the ability of one party
to hold total control ; and section 19 of the Constitution , which guarantees the right to form political parties,
campaign and take part in regular, free and fair elections.
251 See sections 59 and 72 of the Constitution, which require the National Assembly and National Council of
Provinces to facilitate public involvement in legislative and other processes, including public committee meetings;
section 152(1)(e) of the Constitution, which obliges municipalities to encourage the involvement of communities
and community organi sations in local governance; section 195(1)(e) of the Constitution, which requires that
people’s needs are responded to and encourages the public to participate in policy -making; and section 32 of the
Constitution, which establishes a right to access information held by the state , thereby facilitating informed
participation.
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majority may exercise power by ensuring that it is lawful and within the parameters of
the Constitution.
[198] This structure is further reinforced by the Constitution’s commitment to
participatory democracy. The requirement that legislative and policy-making processes
must facilitate public involvement, as recognised by this Court in Doctors for Life ,252
affirms that democratic legitimacy is not exhausted by electoral outcomes alone. The
Constitution instead contemplates a broader conception of democra cy which includes
deliberation, accountability and inclusion. In this way, the notion of majority rule itself
is mediated through constitutionally prescribed procedures and values.
[199] On the other hand, and in due recognition that the will of the majority continues
to remain relevant, the Constitution includes numerous provisions that strengthen
majoritarianism in democratic governance. These provisions do so primarily by
empowering the majority in the National Assembly to exercise control over the
executive branch253 and drive legislative agendas .254 These decisions are taken on the
strength of a simple majority.
252 Doctors for Life above n 19 at para 98.
253 See section 86(1) of the Constitution, which prescribes that the President is elected by the National Assembly
from among its Members and consequently empowers the party with the majority of seats to control the selection
of the Head of State and the Head of the National Executive ; and section 102 of the Constitution, which allows
the National Assembly to remove the President, Deputy President or Ministers (Cabinet) through a majority vote
of no confidence. Conversely, this structure means a majority party may also block such motions. See also
sections 125 and 132 of the Constitution which, similar to the national level, allow the majority party in a
Provincial Legislature to elect the Premier and appoint the Members of the Executive Council.
Provincial Legislature to elect the Premier and appoint the Members of the Executive Council.
254 See section 91 of the Constitution, which authorises the President, once elected, to appoint the Deputy President
and Ministers from Members of the National Assembly. This section also names the President as the Head of the
Cabinet automatically. This directly ties the Executive branch to the majority in the Legislature, allowi ng the
majority party to dominate both branches. See also section 46 of the Constitution, which requires the appointment
of Members of the National Assembly through an electoral system that results, “in general, in proportional
representation”. In effect, this provision establishes a closed -list system where parties nominate representatives.
This strengthens party discipline, as Members of Parliament owe their positions to the party leadership, thereby
enabling the majority party to act cohesively. Fina lly, see sections 44 and 73-77 of the Constitution, which vest
national legislative authority in Parliament, allowing the majority party to pass legislation, set the national agenda
and pass budgets with limited ability for minority parties to halt these.
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[200] There are also provisions that contain elements of both majoritarianism and
counter-majoritarianism, including the impeachment of judges,255 the amendment of the
Constitution256 and the removal of the President.257 In each of these provisions, except
in a motion of no confidence, the requirement of a supermajority vote (two -thirds
majority or more) moderates the partisanship of a large party.
[201] This is not a uniquely South African phenomenon , but one that many
constitutional democracies are required to grapple with. The answer may be complex,
but the challenge is not insurmountable. I have shown how the imperatives of
majoritarianism and counter -majoritarianism find expression within a carefully
delineated space in the text of our Constitution.
[202] This Court, in the Certification judgment,258 commented on what it called the
political features of the Constitution, which provided useful guidance on how courts
should approach this issue. It said:
“Admittedly a constitution, by its very nature, deals with the extent, limitations and
exercise of political power as also with the relationship between political entities and
with the relationship between the state and persons. But this Court has no power, no
mandate and no right to express any view on the political choices made by the
[Constitutional Assembly] in drafting the [new constitutional text],259 save to the extent
that such choices may be relevant either to compliance or non -compliance with the
[Constitutional Principles]. Subject to that qualification, the wisdom or otherwise of
any provision of the [new constitutional text] is not this Court’s business.”260
255 Section 177 of the Constitution.
256 Section 74 of the Constitution.
257 Sections 89 and 102 of the Constitution.
258 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa [1996] ZACC 24; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).
259 In the Certification judgment, this Court was charged with certifying the new constitutional text as complying
with the Constitutional Principles.
260 Certification judgment above n 258 at para 27.
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This is not merely guidance that we should heed. It also establishes a critical doctrinal
basis from which we are to commence our approach to these issues. We must
understand the deliberate design of the Constitution and the political choices it makes,
and incorporate this understanding into our deliberations when arriving at a meaning of
accountability in the context of section 89.261 This demands that we be mindful that the
term is used and understood differently across the text of the Constitution.
[203] Our entire democratic system, including the power vested in the courts, arises
from the political agreement expressed in the text of our Constitution. We are required
to uphold the supremacy of the Constitution by discharging our responsibilities as the
Judiciary, but we are to do so in a manner which defers to those parts of the
constitutional text, such as section 89, that provide a less searching and scrutinising role
for courts. Although our training as lawyers and the orientation of our legal system as
a result of our shameful past may instinctively draw us to the principles of
counter-majoritarianism, we must show restraint in how we navigate this space and , in
doing so, show fidelity to the political choices made in the Constitution. This exercise
of restraint is not the abdication of judicial responsibility but rather its proper discharge.
In contrast, when we seek to moderate or second-guess the effect of the political choices
the Constitution makes, we infringe the separation of powers and undermine the
supremacy of the Constitution.
Removal and accountability
[204] The related but conceptually different imperatives of removal and accountability,
and how they are dealt with in our Constitution, also underpin why there is a need to be
cognisant of both the political and legal dimensions of the Constitution. Within this
framework, it is apparent that removal and accountability seek to advance different but
framework, it is apparent that removal and accountability seek to advance different but
related objectives within an integrated composite constitutional design.
261 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 1999 (10)
BCLR 1059 (CC); 2000 (1) SA 1 (CC) at para 132.
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[205] The National Assembly is charged with electing a President from among its
Members at its first sitting. All that the Constitution requires is that the candidate be a
Member of the National Assembly at the time of the election. 262 Beyond that, the
National Assembly is at liberty to elect any such Member in accordance with the
procedure the National Assembly prescribes. It is a wide and untrammel led power
entrusted to the National Assembly and is arguably the purest form of democracy, in
that the people, through their elected representatives, elect the President. That election
occurs within the framework of the Constitution as an expression of popular will – an
indispensable feature of a democratic state.
[206] And just as the power to elect the President is given in wide terms, so too is the
power to remove the President. That power is located expressly in section 89,263 to
which reference has already been made, as well as in section 102264 through a motion
of no confidence.
[207] In EFF II, this Court, in describing the scope of these sections, said:
“It is apparent from both sections 89 and 102 that [M]embers of the [National]
Assembly wield enormous power. They may remove the President and Cabinet f rom
office for only the reason that they have lost confidence in them. Ordinarily, the loss
of confidence may stem from the manner in which the President or Cabinet performs
functions or exercises power. But the Constitution does not prescribe any condit ions
for the exercise of the power to remove by means of a motion of no confidence. All
that is required is a motion of no confidence supported by a simple majority.”265
262 Section 86 of the Constitution.
263 Quoted at n 7 above.
264 Section 102 of the Constitution, entitled “Motions of No Confidence”, reads as follows:
“(1) If the National Assembly, by a vote supported by a majority of its [M]embers, passes
“(1) If the National Assembly, by a vote supported by a majority of its [M]embers, passes
a motion of no confidence in the Cabinet excluding the President, the President must
reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported by a majority of its [M]embers, passes
a motion of no confidence in the President, the President and the other [M]embers of
the Cabinet and any Deputy Ministers must resign.”
265 EFF II above n 3 at para 137.
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[208] However, this Court went on to distinguish the power of removal as one that may
only be exercised if certain conditions are met, largely on account of the punitive nature
of a removal. It said:
“In contrast, 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.
The reason for this distinction in process is that impeachment is punitive. Depending
on the ground on which it is based, the impeached President may lose all benefits and
be barred from occupying any public office.”266
[209] And so, while section 89 also vests the Members of the National Assembly with
enormous power, that power is constrained in that it may only be exercised by the
National Assembly where one of the grounds of removal is established. If such a ground
is established, the National Assembly is then at liberty to remove the President, or not,
as the case may be. It is not obliged to effect the removal of the President even if the
conditions required for removal were met. This much was said in EFF II:
“[S]ection 89(1) does not oblige the [National] Assembly to remove the President from
office, even where one or more of the listed grounds are established. On the contrary,
the [National] Assembly retains a discretionary power to remove the President.”267
[210] Accountability is a very different matter, however. It courses through the text of
the Constitution in a strong and consistent continuum. It is best exemplified in the
words of Etienne Mureinik:
“If the new Constitution is a bridge away from a culture of authority, it is clear what it
must be a bridge to. It must lead to a culture of justification – a culture in which every
exercise of power is expected to be justified; in whi ch the leadership given by
exercise of power is expected to be justified; in whi ch the leadership given by
government rests on the cogency of the case offered in defence of its decisions, not the
266 Id at para 138.
267 Id at para 203.
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fear inspired by the force at its command. The new order must be a community built
on persuasion, not coercion.”268
[211] Variations of the word “accountable” appear approximately twenty-two times in
the text of the Constitution. It is used in the aspirational sense as a foundational value
of the Constitution269 and is similarly used to describe the ideal government.270 In other
instances, it is used in a permissive sense as an empowering but not obliging action that
will lead to its advancement. 271 Finally, it is used in a peremptory form by creating
clear and enforceable constitutional obligations.272
[212] Tellingly, section 89 does not make any reference to the terms “accountable” or
“accountability”. In other sections, its use is clear – there is no ambiguity in its meaning
nor in what is expected of constitutional subjects. I accept, however, that section 89 is
a tool of accountability in that, when invoked, it can lead to the removal of the President,
which is the ultimate form of accountability. But this is far from it creating a
constitutional obligation to hold the President accountable. This is an issue to which I
will return.
[213] Where the term is used permissively, as is the case in section 57(1)(b),273 it can
never be interpreted as an obligation. In other words, section 57(1)(b) cannot be read
to obligate the National Assembly to make NA Rules and orders of the kind
contemplated. The National Assembly may elect do so, but is not obliged to. It enjoys
268 Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 SAJHR 31 at 32.
269 See section 1(d) of the Constitution.
270 See sections 92, 93(2), 116(1)(b), 133, 152(1)(a), 181(5) and 196(5) of the Constitution.
271 See sections 57(1)(b) and 70(1)(b) of the Constitution.
272 See sections 41(1)(c), 55(2)(a), 114(2)(a), 195(1)(f), 199(8) and 215(1) of the Constitution.
273 Section 57(1)(b) of the Constitution reads as follows:
“(1) The National Assembly may—
. . .
(b) make rules and orders concerning its business, with due regard to
representative and participatory democracy, accountability, transparency and
public involvement.”
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the widest discretion in making that choice and the decision of the majority of its
Members will be dispositive thereof.
[214] By contrast, where the term is used peremptorily, as is the case in
section 55(2),274 the Constitution creates an obligation which cannot be avoided.
Section 55(2) says that the National Assembly must provide for mechanisms to ensure
that all executive organs of state in the national sphere of government are accountable
to it. This provision creates an obligation on the part of the National Assembly that it
must discharge. Here, the National Assembly is precluded from using its majority to
sidestep the constitutional obligation the section prescribes – it is an obligation that it is
obliged to discharge.
[215] There is accordingly a clear conceptual difference in the treatment of removal
and accountability in our Constitution. In the context of majoritarianism and
counter-majoritarianism, I would say that , generally, the pe remptory provisions on
accountability represent a strong expression of counter -majoritarianism that creates
binding constitutional obligations that allow the strong review powers of courts to
oversee the discharge of those obligations. Removal, in the per missive terms of
section 89, is instead a strong expression of majoritarianism , vesting the National
Assembly with wide discretionary power and limited judicial oversight.
[216] Sections 89 and 102 may be properly described as tools of political
accountability. If invoked, they can effect the highest form of accountability – the
removal of the President – but whether they are invoked is wholly within the discretion
of the N ational Assembly. That is how I understand their description as tools of
accountability as opposed to the obligation to hold accountable found in section 42(3),
read with section 55(2), of the Constitution.
274 Quoted at n 37 above.
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[217] This is not an accident in drafting but rather, as Ha ysom reminds us, 275 a
deliberate and careful attempt not to displace the will of the majority, but to ensure that
it would be exercised within a framework that protects all members of the political
community and beyond. That framework, as is evidenced in the text of our Constitution,
incorporates both aspirations of democratic expression , which must be honoured and
respected equally as part of the constitutional design expressing the will of the people.
[218] Having provided that context, I proceed to deal with the challenges before us.
Exclusive jurisdiction
The rule challenge
[219] In line with the first judgment, I agree that we enjoy exclusive jurisdiction over
the rule challenge in terms of section 167(4)(e). However, the reasons I advance for
this finding diverge from those in the first judgment. The National Assembly does not
have an obligation to hold the President accountable under section 89, and our exclusive
jurisdiction over the rule challenge cannot be found there. Rather , it is the obligation
of the National Assembly to create a mechanism for the removal of the President in
terms of section 89 that engages our exclusive jurisdiction. I explain.
[220] In EFF I, this Court said:
“To determine whether a dispute falls within the exclusive jurisdiction of this Court,
section 167(4)(e) must be given a contextual and purposive interpretation , with due
regard to the special role this apex Court was established to fulfil. As the highest court
in constitutional matters and ‘the ultimate guardian of the Constitution and its values’,
it has ‘to adjudicate finally in respect of issues which would inevitably have important
political consequences’. Also to be factored into this process is the utmost importance
of the highest court in the land being the one to deal with disputes that have crucial and
sensitive political implications. This is necessary to preserve the comity between the
sensitive political implications. This is necessary to preserve the comity between the
275 Haysom above n 243.
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judicial branch and the executive and legislative branches of government.” 276
(Footnotes omitted.)
[221] The “crucial and sensitive political implications” of the NA Rules governing the
removal of a sitting President cannot be overstated. But there is further useful guidance
to be extracted from EFF I which clearly establishes our exclusive jurisdiction in the
rule challenge at hand. As already quoted above,277 this Court identified a key indicator
of a constitutional obligation, as contemplated in section 167(4)(e), when it said that
such obligations must be specifically imposed on the President or the N ational
Assembly, as the case may be.278
[222] Whether the NA Rules governing the removal of the President in terms of
section 89 fall within the exclusive remit of the National Assembly has already been
decided. This Court , in EFF II, held that section 89 of the Constitution imposes an
exclusive obligation on the National Assembly to put in place rules for the removal of
the President. 279 In the present matter, it is the EFF’s case that the NA Rules for the
removal of the President, which have since been adopted by the National Assembly, do
not, in t heir current form, fulfil that constitutional obligation. Given that the content
and application of these NA Rules are inextricably linked to the constitutional
obligation vested solely in the National Assembly by section 89, our exclusive
jurisdiction in terms of section 167(4)(e) is engaged with respect to this challenge. 280
The vote challenge
[223] With respect to the challenge to the vote, I disagree with the first judgment’s
finding of exclusive jurisdiction for the reasons I set out hereunder.
276 EFF I above n 2 at para 19.
277 See the first judgment at [40].
278 EFF I above n 2 at paras 18 and 23.
279 EFF II above n 3 at paras 173 and 196.
280 Id at para 196.
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[224] In its founding affidavit, the EFF stated that “the essence of this application is
the failure of Parliament to uphold and carry out its constitutional obligation to hold the
President accountable in terms of section 89 of the Constitution”. As is apparent from
this wording, the vote challenge rests on the National Assembly’s obligation to hold the
President accountable as allegedly required by section 89. Whilst I do not dispute that
the obligation to hold the President to account rests on the N ational Assembly, this
constitutional obligation cannot be located in section 89, and it is for this reason that the
EFF’s reliance on the obligation of accountability to establish exclusive jurisdiction in
respect of the vote challenge cannot be sustained. This conclusi on is firmly rooted in
the jurisprudence of this Court as it pertains to constitutional obligations and
section 167(4)(e).
[225] Whilst much of that jurisprudence has already been referenced in the
first judgment, I highlight only those features that are central to my reasoning.
[226] First, Women’s Legal Centre I reminds us that our exclusive jurisdiction is
dependent on whether the obligation “is stated unambiguously in the Constitution”. 281
Second, in SARFU I, this Court held that “a narrow meaning should be given to the
words ‘fulfil a constitutional obligation’ in section 167(4)(e)”,282 so as to avoid any
conflict with the lower courts’ powers to make orders concerning the validity of
presidential or parliamentary conduct.283 Third, this Court in EFF I, specifically noted
that “due regard [must be given] to other constitutional provisions that are materially
relevant to the one being interpreted”.284
[227] With the above in mind, the wording of section 89285 simply fails to establish an
obligation to hold the President account able on the part of the National Assembly
281 Women’s Legal Centre I above n 24 at para 15. See also Zuma above n 49 at paras 27 and 35.
282 SARFU I above n 28 at para 25.
283 See also Doctors for Life above n 19 at paras 19-20 and Zuma above n 49 at para 28.
284 EFF I above n 2 at para 17.
285 Quoted at n 7 above.
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through removal. Not only is the section drafted permissively, it also does not make
any reference to “accountable”, “accountability”, “account” or any other words
affiliated with such an obligation. What is appa rent from the wording of section 89 is
that the National Assembly is charged with the discretion to remove the President if a
jurisdictional ground is met and a two-thirds majority vote is obtained.
[228] Were this Court to find that section 89, beyond creating an obligation to make
rules governing removal, also establishes a constitutional obligation to hold the
President accountable, it would be importing the peremptory language of section 42(3),
read with section 55(2), into the text of section 89. By so doing, the text of section 89
would be impermissibly distorted through the creation of a constitutional obligation of
accountability that the text of section 89 simply does not support. It is obvious , but
worth recalling , that section 89 is a constitutional provision and the imposition of
constraints onto it, which are not apparent from the section itself, would impermissibly
tread on the remit of the drafters of the Constitution.
[229] If we are to hold that section 89 creates an obligation to hold the President
accountable, we would have to read section 89 as follows: “The National Assembly
may, by a resolution of a two -thirds majority, remove the President but must in doing
so hold the President accountable”. In my view, a p ermissive and peremptory power
cannot exist in contradiction with one another in the balanced formulation of section 89.
[230] The principle of subsidiarity requires that the more specific norm be preferred
over the general norm when addressing an issue. 286 In the present circumstances, this
norm would, if this Court sought to locate a constitutional obligation on the part of the
National Assembly to hold the President accountable, direct this Court to section 42(3)
National Assembly to hold the President accountable, direct this Court to section 42(3)
and not to section 89. This Court cannot rely on section 89 to found this obligation
286 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2015 (12) BCLR 1407 (CC); 2016
(1) SA 132 (CC) at paras 46 and 121.
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when section 42(3) exists with far greater specificity. This is the design of the
Constitution, which we are required to respect.287
[231] We must now turn to sections 42(3) and 55(2), read with section 92, as materially
relevant to the interpretation of section 89 in establishing an obligation of
accountability. What is apparent is that these sections do , in fact , create clear and
unambiguous obligations on the part of the National Assembly to hold the President
accountable without dictating how it is to do so. These sections are prescriptive and
demand action from the National Assembly whilst also lacking specificity. In contrast,
one cannot rely on the deliberately permissive language used in section 89 to establish
a positive, and very specific, obligation to hold the President accountable through
removal.
[232] In this regard , I do not seek to relegate accountability to some secondary
imperative. It is not. It is a critical feature of our constitutional framework but its
expressions and attainment are treated differently in different spaces on the
constitutional canvas. I accept that accountability is not irrelevant in a section 89
process as it has been correctly described as a tool of accountability. However, this is
very different, as I have shown from a reading of section 89, from creating an
accountability obligation. In fact, most of the reasoning the first and third judgments
adopt is based on this, with respect, incorrect and elevated understanding of
accountability in the section 89 process.
[233] In any event, if this Court were to allow the exercise of a permissive power to
engage our exclusive jurisdiction without more, it risks expanding the scope of
section 167(4)(e). This Court is required to interpret the constitutional obligation in
section 167(4)(e) narrowly.
287 See also this Court’s exposition of the principle of subsidiarity in Commissioner, South African Rev enue
Service v Richards Bay Coal Terminal (Pty) Ltd [2025] ZACC 3 ; 2025 (5) SA 617 (CC) ; 2025 (6) BCLR 639
(CC) at paras 124-30.
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[234] In the circumstances, having concluded that section 89 does not create an
accountability obligation, the failure to fulfil the supposed obligation cannot be relied
upon to establish this Court’ s exclusive jurisdiction in the vote challenge. Such an
obligation simply does not exist in section 89.
[235] A final consideration of the inapplicability of section 167(4)(e) to this challenge
is this Court’s decision in Zuma. In a challenge to presidential conduct, this Court was
meticulous in distinguishing between an exercise of constitutional powers and the
failure to fulfil constitutional obligations as per section 167(4)(e). It stated that:
“The distinction between exercising constitutional powers and failing to fulfil
constitutional obligations is crucial. Section 167(4)(e) addresses only the latter
category. When the President exercises a power – even if that exercise is challenged
as improper – the inquiry concerns a positive act rather than an om ission or failure.
The challenges advanced by the applicants fall squarely into the former category. Their
contention that the President lacked authority to suspend Minister Mchunu or appoint
Professor Cachalia, and that his appointment of Madlanga ADCJ was irrational, raises
familiar questions of administrative review that apply uniformly across the exercise of
public power. The constitutional imperatives of rationality and legality bind all organs
of state and public functionaries alike. Any ‘failure’ to comply with these standards is
not a failure to comply with a constitutional obligation uniquely imposed on the
President, but rather a breach of general constitutional principles binding on all holders
of public power.”288
[236] The vote challenge is also premised on grounds of irrationality and unlawfulness,
with the applicants seeking to characterise this as a failure by the National Assembly to
fulfil its constitutional obligations. This would be a proper basis to engage the exclusive
fulfil its constitutional obligations. This would be a proper basis to engage the exclusive
jurisdiction of this Court if the vote were linked to a constitutional obligation. However,
when one cuts to the bone of the challenge, the substance of their argument is that they
disagree with the manner in which the discretionary powers of the National Assembly
were exercised when it voted. There was no failure to exercise the obligations imposed
288 Zuma above n 49 at para 29.
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on it by section 89. As said by this Court in Zuma, “[s]uch complaints concern the
manner of exercising constitutional powers, not the failure to fulfil constitutional
obligations, and fall within the standard review jurisdiction of the High Court under
section 172(2)(a)”.289
[237] It is for these reasons that I conclude that this Court does not have exclusive
jurisdiction in respect of the vote challenge.
Direct access
[238] Having found th at the vote challenge does not engage this Court’s exclusive
jurisdiction, I turn now to the EFF’s alternative submissions for direct access under
section 167(6)(a) of the Constitution. The test for allowing direct access to this Court
is trite: whether exceptional circumstances exist , and whether it is in the interests of
justice to grant direct access .290 In support of its request for direct access, the EFF
submits that the interests of justice justify the granting of direct access.
[239] In advancing this arg ument, the EFF overlooks the fundamental role the lower
courts play in the adjudication of these kinds of issues. In acknowledgment of the
High Court and Supreme Court of Appeal’s role in the assessment of the Executive’s
conduct, this Court in EFF I stated that it “is the responsibility they share with this
Court – a terrain that must undoubtedly be adequately insulated against the inadvertent
and inappropriate monopoly of this Court”. 291 Further grounding of this fundamental
principle may be found in Women’s Legal Centre I, where this Court said:
“[T]he power to grant litigants direct access outside the Court’s exclusive competence
is one this Court rarely exercises, and with good reason. It is loath to be a court of first
289 Id at para 30.
290 UDM v Speaker above n 55 at para 23.
291 EFF I above n 2 at para 17. See also S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401
(CC) at paras 9 -11; Brink v Kitshoff N.O . [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at
para 3; and Zondi v MEC, Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC);
2006 (3) BCLR 423 (CC) at para 12.
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and last instance, thereby depriving all parties to a dispute of a right of appeal. It is
also loath to deprive itself of the benefit of other courts’ insights.” 292 (Footnote
omitted.)
[240] Here, there are no exceptional circumstances and the interests of justice do not
favour granting direct access. The High Court enjoys the necessary jurisdiction to deal
with review challenges to executive action. Should this matter end up before this Court,
it would benefit from the High Court’s insight. In closing, this Court in Mkontwana,293
makes clear that—
“the importance and complexity of the issues raised would weigh heavily against this
Court being a court of first and final instance. As a general rule, the more important
and complex the issues in a case, the more compelling the need for this Court to be
assisted by the views of another court.”294
Alleged delay in the challenge to rule 129I
[241] I associate myself with the finding of the first judgment that there is no delay in
the rule challenge.295 As a matter of logic, and on the strength of t his Court’s decision
in O’Brien,296 a challenge to the constitutional validity of a rule which applies in
perpetuity can never be extinguished by delay. If the rule is operative, it is subject to
constitutional scrutiny and any challenge brought while the rule endures will be timely.
Merits
[242] The first judgment says this case is about the constitutional obligation to hold
the President accountable. It says:
292 Women’s Legal Centre I above n 24 at para 27. See also AParty v Minister of Home Affairs; Moloko v Minister
of Home Affairs [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC) at para 30.
293 Mkontwana v Nelson Mandela Metropolitan Municipality; Bisset v Buffalo City Municipality; Transfer Rights
Action Campaign v MEC, Local Government and Housing, Gauteng [2004] ZACC 9; 2005 (1) SA 530 (CC);
2005 (2) BCLR 150 (CC).
294 Id at para 11.
2005 (2) BCLR 150 (CC).
294 Id at para 11.
295 See the first judgment at [97] to [100].
296 O’Brien above n 118.
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“This is a breach of the constitutional obligations imposed upon the National Assembly
by section 89(1) of the Constitution, that is, to put in place an effective mechanism and
to take appropriate action to hold the President accountable in terms of that section.”297
[243] However, as already explored, the alleged constitutional obligation of
accountability that the first judgment relies on in reaching these findings is not a part of
section 89, but is rather a central feature of sections 42(3) and 55(2). There is, therefore,
an impermissible conflati on of the provisions of sections 42(3) and 55(2) with that of
section 89, with the latter provision going no further than to endow the National
Assembly with the permissive power to remove the President. It would also, as I have
indicated, infringe the principle of subsidiarity.
[244] Similarly, the NA Rules that empower the National Assembly to discharge its
permissive power to remove the President do no more than require it to put in place a
mechanism which ensures that, if or when the National Assembly decides on
commencing a process for the removal of the Presi dent, that process can be properly
facilitated. The National Assembly has discharged this obligation.
[245] For completeness’ sake, I turn to the mechanisms which are catered for in the
NA Rules to give effect to the true accountability obligation contained in section 55(2).
These mechanisms include: statements by Members and the Executive; 298 questions to
the Executive;299 the formation of standing committees 300 and portfolio committees;301
297 See the first judgment at [144].
298 Governed by chapter 9 of the NA Rules, which allows Members of the National Assembly to make statements
on any matter and for Cabinet Members to make statements regarding policy implementation.
299 Governed by chapter 10 of the NA Rules, which empowers the National Assembly to issue questions for oral
or written reply by Cabinet Members, including questions on matters of accountability.
300 Governed by chapter 12 of the NA Rules, which establishes specific standing committees to oversee certain
areas of government. For example, the Standing Committee on Public Accounts was formed to oversee
government spending as is mandated by section 55 of the Constitution.
301 Governed by chapter 12, part 10 of the NA Rules, these committees are the primary oversight mechanism of
the National Assembly . They are mandated to monitor, investigate , inquire into and make recommendations
regarding the legislative programme, budget and other listed activities of specific government departments.
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the receipt of public petitions;302 the powers to summon;303 and, lastly, debates on urgent
matters.304 Over and above these mechanisms, the National Assembly may, as was
noted by this Court in EFF II, “wield enormous power” 305 by removing the President
through a section 89 impeachment process or a section 102 motion of no confidence.
[246] So, too, is it important to bear in mind that this is not a closed list. As recently
as 2 December 2025, the National Assembly voted in favo ur of and established a
dedicated Committee on the Presidency with the intention of strengthening executive
accountability following the recommendations made by the Judicial Commission of
Inquiry into Allegations of State Capture. This Committee enables Parliament to
scrutinise the Presidency’s budget and operation s by requiring the Director-General in
the Presidency to account and the President and Deputy President to appear before the
National Assembly annually. The Committee is the first of its kind and was established
after the National Assembly amended the NA Rules to provide for the creation of such
a committee.
[247] In sum, the mechanisms for the National Assembly to hold the Executive,
including the President, accountable are properly catered for in the Constitution and the
NA Rules. Section 89 cannot be laboured with carrying that obligation. It was never
the intention that it would, and the plain reading of its text militates against that view.
[248] The structure of section 89, while permissive in the widest sense, does, however,
constrain the National Assembly when it attempts to remove the President. It does so
in two ways. First, one of the grounds of removal must be present and accompany any
resolution for removal. Second, at least two -thirds of the Members of the
302 Governed by chapter 14, part 3 of the NA Rules, allowing the receipt of petitions from the public.
303 Governed by section 56 of the Constitution, rule 167 of the NA Rules and chapter 15, part 4 of the NA Rules,
empowering the National Assembly or its committees to summon any person to give evidence on oath, produce
documents or report to it to maintain oversight.
304 Governed by rule 130 of the NA Rules, which allows for the discussion of urgent matters of national public
importance by the National Assembly.
305 EFF II above n 3 at para 137. Also quoted above at [207].
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National Assembly must support the re moval. The grounds of removal are: a serious
violation of the Constitution or the law; serious misconduct; or inability to perform the
functions of office.306 Accordingly, any resolution purporting to remove the President
that fails to satisfy any one of t hese grounds will be found to be lacking and any such
removal effected will likely be unlawful. In EFF II, this Court said that the process
envisaged in section 89(1) necessarily involves an antecedent determination by the
National Assembly to the effect that one of the listed grounds exists.307
[249] I agree with the first judgment when it says that the two -stage impeachment
process involves—
“a preliminary inquiry to determine whether a listed ground exists, followed (if such a
ground is established) by a deci sion by the National Assembly on whether to remove
the President from office.”308 (Footnotes omitted.)
[250] And so, while the National Assembly is not obliged to remove the President, it
is obliged, if it reaches the stage when a vote is taken on the removal of the President,
to demonstrate that a listed ground for removal exists. This , as I have indicated , is a
condition precedent for the benefit of the President given the punitive nature of removal
under section 89.
[251] The primary issue in these proceedings pertains to the authority of the National
Assembly during the initial phase of the impeachment inquiry. The NA Rules, in
structuring the preliminary inquiry, provide for a two-stage preliminary process. First,
they contemplate the appointment of a Panel to consider the evidence in support of a
motion to remove. In this regard, the Panel is required to make a recommendation to
the Speaker on whether sufficient evidence exists to show that the President committed
306 See section 89(1) of the Constitution.
307 EFF II above n 3 at para 180.
308 See the first judgment at [121].
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a serious violation of the Constitution or law, committed serious misconduct or suffers
from an inability to perform the functions of office.309
[252] The second stage of the preliminary inquiry would arise if the National Assembly
accepted a recommendation of the P anel that sufficient evidence exists to establish a
listed ground in section 89. This would culminate in the impeachment process being
referred to an Impeachment Committee, whose task it is to assess the veracity of the
allegations of misconduct and consi der a recommendation for the removal of the
President. Both these stages, however, form part of the preliminary inquiry.
[253] The first judgment concludes that rule 129I is unconstitutional on the basis that
it—
“installs the National Assembly as a gatekeeper – the very invincible giant that this
Court has warned of. With power exclusively in the hands of the National Assembly,
functioning as a collective body, there is a high risk of section 89(1) being paralysed,
thus making it easy for the President to escape consequences. Instead of ensuring
accountability and transparency, rule 129I gives the National Assembly an ability to
frustrate and thwart subsequent steps in the process which would enable it and the
public to make informed decisions in the fulfilment of their obligations and exercise of
their rights. In this case, the mechanism designed and chosen by the National Assembly
is both an ineffective one and one that undermines key constitutional values that it is
required to live up to.”310 (Footnotes omitted.)
The effect of this holding is that the N ational Assembly, which is partisan and
majority-controlled, cannot take a decision on the outcome of the first stage of the
preliminary inquiry involving the Panel. I disagree with this conclusion and do so for
a number of reasons.
309 EFF II above n 3 at paras 176 and 180.
310 See the first judgment at [143].
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[254] The first judgment locates its reason for impugning the rule in the premature
shutting down of the preliminary inquiry by a political majority before a full ventilation
of the facts. Howeve r, on the approach of the first judgment, there will indeed be a
shutting down of the preliminary inquiry if the Panel does not recommend an
impeachment trial. There will also not be a full ventilation of the facts that the
first judgment says is necessar y. The difference between a permissible shutting down
and one that is impermissible lies not in the NA Rules but in how the National Assembly
votes, and it is that conduct that must be challenged. I have indicated in my response
to the third judgment tha t the rule does not permit the National Assembly to act
unlawfully, nor is there anything in the rule which may remotely suggest otherwise.
[255] This Court confirmed , in EFF II, that section 89 empowers the National
Assembly and the National Assembly alone to remove the President from office. 311 It
is what I have earlier described as the exclusive nature of the power given to the
National Assembly in terms of section 89. This Court then reasoned that, as the drafters
of our Constitution gave the power to the National Assembly to elect the President from
among its Members, it was only fitting that the same body should have the power to
remove from office the person it had elected.312 Beyond that, this Court explained that
the locus of that power included any preliminary processes.313
[256] This all points firmly to the conclusion that section 89, as understood and
interpreted by this Court, locates the outcome of the preliminary inquiry, as well as the
power to remove the President, with the National Assembly and decidedl y does not
create a bifurcated process. The National Assembly constitutes both the Panel and the
Impeachment Committee and allocates the powers and responsibilities to both bodies.
Impeachment Committee and allocates the powers and responsibilities to both bodies.
Importantly, these structures can do no more than make recommendations to the
National Assembly.
311 EFF II above n 3 at para 173.
312 Id.
313 Id at paras 180-1.
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[257] In crafting the NA Rules relating to the removal of the President, the National
Assembly was conspicuous in retaining its section 89 power. This is evident from the
content of rule 129P which provides that:
“(1) The [National] Assembly will make the final and binding decision relating to
any matter dealt with in this rule.
(2) Any recommendation made by the independent panel or the Impeachment
Committee or any decision made by the Speaker in terms of this rule is not
final and b inding on the [National] Assembly, including on any decision the
[National] Assembly intends to make in terms of this rule.”314
[258] And so, it must follow that the NA Rules do not purport to hand control over the
preliminary inquiry to the Panel as the first judgment suggests. That control has always
been vested in the National Assembly by section 89. Included in that control is the
power vested in the National Assembly not to proceed to the second part of the
preliminary inquiry. This is not constitutionally offensive as common sense would
support the view that , arising out of the sifting , it is practical and efficient not to
belabour the Impeachment Committee with an impeachment trial with insufficient
evidence. At the same time, the National Assembly should not be bound to refer the
matter to the Impeachment Committee where it takes a different view from the Panel
based on the information before the Panel. Of course, the National Assembly may
establish structures or create processes to assist it , as it did under the NA Rules, but it
does not, in so doing, divest itself of the power the Constitution gives to it under
section 89.
[259] Were this Court to hold that the control over the preliminary inquiry should not
be vested with the National Assembly, but in some other structure, such as the Panel, it
would be this Court which would be divesting the National Assembly of control over
would be this Court which would be divesting the National Assembly of control over
the preliminary inquiry. That would offend both the structure of section 89 and the
location of the political power that section 89 vests in the National Assembly. That was
314 Rule 129P.
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a choice made by the drafters of the Constitution and it is a choice this Court is obliged
to respect.
[260] Furthermore, this will also result in an irreconcilable disjuncture in the removal
process. The first judgment appears to close the door to the expression of partisanship
in the preliminary inquiry but accepts that partisanship may prevail in the final vote on
the removal of the President. That partisanship, however, must be expressed by way of
a supermajority. The effect of its holding is that it would be unconstitutional to allow
the National Assembly to vote against a recommendation of the Panel, but constitutional
for the very same National Assembly to ignore a recommendation of the Impeachment
Committee to remove the President – a far fuller recommendation arrived at after a
complete consideration of all the evidence and tested through cross -examination.
Section 89 is, with respect, not capable of being interpreted in such a bifurcated manner.
[261] In my v iew, there is no justification in the attempt by the first judgment to
distinguish between the role of the National Assembly in relation to the preliminary
inquiry and its role in the final vote. The power of the National Assembly to remove
and its power in the preliminary inquiry are the same. The powers in respect of both
processes are located in section 89 which must be interpreted as giving the
National Assembly the permissive power in both processes. Accordingly, it is not
sustainable to argue that whilst the ultimate power granted to the National Assembly to
remove the President is wide, the National Assembly’s power in the preliminary stage
is either constrained or should be removed altogether. This cannot occur – this Court
cannot deprive the National Assembly of its powers in the preliminary inquiry but
reallocate them in the final process.
[262] In bolstering its argument in this respect, the first judgment turns to rely on this
[262] In bolstering its argument in this respect, the first judgment turns to rely on this
Court’s decision in Mazibuko v Sisulu.315 It does so by extending the principle against
majority control, as enunciated in this decision, to impugn the majoritarian nature of the
315 Mazibuko v Sisulu above n 62.
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National Assembly itself in the present matter. 316 However, this decision is clearly
distinguishable and any reliance thereon in the present matter is misplaced. Mazibuko
v Sisulu was concerned with issues of majority control in committees charged with a
particular function, which had the ultimate conse quence of preventing a motion of no
confidence from coming before the National Assembly. Committees of this nature are
not vested with the powers enjoyed by the National Assembly but are tools relied upon
by the National Assembly to assist it in exercising said powers. To divest the National
Assembly of its majoritarian nature by placing it on equal footing as committees formed
under its auspices would be to render a political body non -political. The effect of this
decision was to vindicate the right of the National Assembly to vote, as the real
decision-maker, in terms of section 102 of the Constitution. The ratio of this judgment
shares this purpose.
[263] Similarly, the first judgment turns to the decision in Oriani-Ambrosini for
support.317 The first judgment takes the view that that decision “invalidated rules of the
National Assembly which required an individual Member to obtain the National
Assembly’s permission before introducing a Bill ”.318 In so doing , it concludes that
Oriani-Ambrosini “makes clear why accountability and transparency are undermined
when the National Assembly performs a gatekeeping function at an early stage of a
constitutional process”.319 I disagree. This Court’s decision in Oriani-Ambrosini was
targeted at protecting the power of i ndividual Members of the National Assembly to
introduce legislation as provided for in section 73(2) of the Constitution. This Court
correctly sought to protect the right vested in individual Members by section 73(2), as
we ought to do for the power veste d in the National Assembly by section 89. The
vindication of one constitutional power cannot be relied on for the subjugation of
another.
vindication of one constitutional power cannot be relied on for the subjugation of
another.
316 See the first judgment at [132].
317 Oriani-Ambrosini above n 173. See also the first judgment at [133].
318 See the first judgment at [133].
319 Id.
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[264] The first judgment also relies on the principles of accountability and
transparency in reaching its conclusion on the unconstitutionality of rule 129I. It says:
“A rule allowing the National Assembly to thwart an impeachment motion at an early
stage, despite a finding that the complaint is sufficiently substantiated, would fall foul
of the Constitution for multiple reasons. It would, for example—
(a) foreclose any participation by any person or party in a further impeachment
process;
(b) bar ‘appropriate action’ in the form of testing and examining evidence and
informed debate and engagement in the impeachment proce ss ‘before its fate
is decided’;
(c) deny a genuine platform for the ventilation of informed views on a matter of
momentous national importance; and
(d) deprive the citizenry of the opportunity to be ‘active, informed and engaged’
and to ‘properly hold the ir elected representatives accountable ’ by not
informing them ‘of the relative merits’ of the impeachment motion.”320
[265] Again, and while I associate myself with many of the principles captured above
as they relate generally to accountability and to open debate and participation, my view
is that the NA Rules under review here do not undermine any of those imperatives. Let
me explain.
[266] One of the founding values located in section 1 of the Constitution is a system
of multi-party democratic government that is ac countable, responsive and open. That
imperative of accountability is given further expression in sections 42(3),321 55(2)322
and 92323 of the Constitution. Sections 42(3) and 55(2) oblige the National Assembly
320 See the first judgment at [134].
321 Quoted at n 36 above.
322 Quoted at n 37 above.
323 Section 92 of the Constitution, entitled “Accountability and responsibilities”, reads as follows:
“(1) The Deputy President and Ministers are responsible for the powers and functions of
“(1) The Deputy President and Ministers are responsible for the powers and functions of
the [E]xecutive assigned to them by the President.
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to oversee executive action and provide mechanisms to ensure that all executive organs
of state in the national sphere of government are accountable to it. This , of course,
would include the President. Section 92(2), on the other hand, provides that Members
of Cabinet324 are accountable collectively and individually to Parliament for the exercise
of their powers and the performance of their functions. So, there are dedicated and
mandatory provisions and structures to ensure the accountability of the President to the
National Assembly. These are important provisions of the Constitution which this
Court underpinned in UDM v Speaker when it held:
“The National Assembly indeed has the obligation to hold [M]embers of the Executive
accountable, put effective mechanisms in place to achieve that objective and maintain
oversight of their exercise of executive authority.”325
[267] The first judgment holds, however, that if the National Assembly decides not to
proceed with the impeachment process in the face of a recommendation by the Panel, it
would constitute a failure by the National Assembly to fulfil its constitutional obligation
to hold the President accountable.326 But this cannot be the result of a vote not to accept
the recommendation of the Panel. The provisions of section 89, while they may
advance accountability, are not reasonably capable of being interpreted as creating a
constitutional obligation to hold the President accountable.
[268] The NA Rules require that the Report be tabled before the National Assembly
for consideration and a decision on the Report. This process ensures that the Report is
(2) Members of the Cabinet are accountable collectively and individually to Parliament
for the exercise of their powers and the performance of their functions.
(3) Members of the Cabinet must—
(a) act in accordance with the Constitution; and
(3) Members of the Cabinet must—
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports conc erning matters under
their control.”
324 Section 91(1) of the Constitution provides that—
“[t]he Cabinet consists of the President, as [H]ead of the Cabinet, a Deputy President and
Ministers.”
325 UDM v Speaker above n 55 at para 40.
326 See the first judgment at [74] to [76].
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available to the National Assembly and the public at large, thereby satisfying the
requirements of accountability and openness. The requirement that the Report be
considered suggests that the Report and its recommendation s are open for discussion ,
creating the platform that the first judgment says is important for engaging with the
content of the Report. A final point on this score is that the President must be given
notice of when the Report of the Panel is to be considered by the National Assembly.
If the President elects to appear and participate in that debate , it further advances the
imperatives of accountability, openness and public debate.
[269] I accordingly disagree that the tabling of the Report and the discussion and
debate that follow undermine the imperatives of accountability, openness, public
discussion and engagement. On the contrary, these processes all contribute to
advancing those imperatives. But , ultimately, what remains importa nt is that the
National Assembly retains the power to make the institutional pre-determination it must
make, something which – as EFF II reminds us – is the responsibility of the National
Assembly and that of the National Assembly alone.
Overall conclusion
[270] Ultimately, I return to my view that section 89 clearly evidences how the
Constitution allocates considerable political power to the National Assembly when it
seeks to remove the President. To the extent that the power is constrained, those
constraints exist for the benefit of the President , given the punitive nature of removal.
It can hardly be open to this Court, despite its impressive and formidable powers, to
second-guess that choice and moderate the operation of section 89 by turning it into an
accountability obligation process. It is not, and that is not the end of accountability. I
have shown that there are dedicated provisions of the Constitution that clearly and
unambiguously provide for the accountability of the President.
unambiguously provide for the accountability of the President.
[271] Finally, I pose a “not so hypothetical ” question. Should a President who has
committed serious misconduct be removed from office? Those who are drawn to
counter-majoritarianism would probably say yes, and would do so on the basis that the
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values of the Constitution, inclu ding those of accountability and the disdain the
Constitution must show for serious misconduct, demand such removal to protect the
integrity of the constitutional order. Those who are drawn to majoritarianism would
probably say no and, in doing so, may say that, while serious misconduct should not go
without consequences, other factors including the stability of the democratic order or
the need to avoid the disruption of important government work may outweigh the
benefit of removing the President. They may also point out that, outside removal, there
are other mandatory mechanisms to hold the President accountable that will ensure
serious misconduct will not pass without consequence. Finally, they may argue that
just as the Constitution provides the National Assembly with wide powers to elect the
President, it endows the National Assembly with equal powers to remove the President,
moderated only by the specific grounds for removal and a supermajority vote.
[272] Without having to choose which of these equ ally compelling responses is more
persuasive, this Court need do no more than recognise that the provisions of section 89
intentionally cater for the principle of majoritarianism. It does not do so as an affront
to the principles of counter-majoritarianism, but rather as part of a careful constitutional
design which ensures the proper expression of both legitimate principles.
[273] It is for these reasons that I disagree with the reasoning and the conclusion of the
first judgment that rule 129I is unconstitutional to the extent that it allows the National
Assembly the choice of rejecting a recommendation by the Panel. My view is that
rule 129I is consistent with the provisions of the Constitution. In its formulation , it
recognises the wide powers of removal ve sted in the National Assembly by section 89
and retains that wide power and discretion of the National Assembly in its consideration
of the Report.
The third judgment
of the Report.
The third judgment
[274] I have also read the judgment of my Colleague, Majiedt J, in which he reaches
the conclusion that rule 129I is unconstitutional for reasons other than th ose which the
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first judgment relies on. I disagree with both the conclusion and the reasoning arrived
at in the third judgment. My reasons follow.
[275] The third judgment rests on two related substantive propositions:
(a) The National Assembly is constitutionally obliged to determine whether
a ground for removal under section 89 exists;327 and
(b) The antecedent third step, which allows the National Assembly to vote on
the Report and Panel recommendation, is a fatal flaw in the rule in that it
allows the National Assembly to terminate the impeachment process and,
thereby, abstain from the section 89(1) removal vote.328
[276] The National Assembly is obliged to determine whether a ground for removal
exists if it wishes to proceed with a vote under section 89, but it is not required to get to
that point in every impeachment process. The National Assembly may, for good reason,
never reach that stage under section 89, as I will explain. On the third judgment’s
reasoning, the antecedent step of voting is described as a fatal flaw in the rule and must
be expunged. On th at reasoning, the determination of the Panel will be dispositive of
that stage of the inquiry. In that event , if the Panel does not determine that the matter
should be referred to the Impeachment Committee, the section 89 inquiry will come to
an end. That too will pr event the National Assembly from establishing a ground for
removal and, for that matter, considering the removal of the President. The
third judgment describes this as a fatal flaw and a violation of the Constitution. But
how can that be when on the third judgment’s own reasoning it can be a lawful outcome
if the determination of the Panel is final? The same rule cannot be fatally flawed in the
one instance and not the other. Indeed, and on the reasoning of the third judgment, the
National Assembly is n ot constitutionally obliged in every impeachment process to
determine whether a removal ground exists.
determine whether a removal ground exists.
327 See the third judgment at [318].
328 See the third judgment at [322].
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[277] If the National Assembly does not establish the existence of a ground for removal
of the President, the consequence is that it may not proceed with the removal. This
position is wholly consistent with this Court’s previous findings in EFF II.329 Put
differently, the National Assembly is only required to do so as a precursor to a vote on
the removal of the President. It may never get to that point, and it is not constitutionally
offensive if it does not as the preliminary inquiry is divided into two phases – the Panel
and the Impeachment Committee phases. It makes sense not to proceed to the
Impeachment Committee stage, if the first stage determines there is insufficient
evidence to proceed with the impeachment. I will demonstrate that there may be many
cogent reasons why an inquiry may not have to proceed beyond the Panel stage, as I
will also show that there are many reasons why the determination of the Panel cannot
be final.
[278] The second proposition says that the antecedent third step of allowing the
National Assembly to vote on the Report and recommendation of the Panel is the fatal
flaw in the rule , as it allows the National Assembly to shut down the impeachment
inquiry. My view is that the antecedent step is an important part of the preliminary
inquiry and falls within the wide remit of the National Assembly in deciding on the
form of the preliminary inquiry. The third judgment says that the antecedent third step
is not constitutionally required. That can never be a basis to impugn the step. Given
that the third judgment accepts that the form of the preliminary inquiry is for the
National Assembly to determine, it can never be suggested that the antecedent third step
is offensive, as it serves as a practical and efficient mechanism for the National
Assembly to decide whether to proceed with the section 89 inquiry. I will also show
that the rule in its current form is properly alig ned with giving effect to the section 89
that the rule in its current form is properly alig ned with giving effect to the section 89
process, both conceptually and in substance.
[279] On the current formulation of the rule, a Panel report and recommendation serve
before the National Assembly for consideration. Rule 129I provides:
329 EFF II above n 3 at para 176.
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“Consideration and referral of panel report
(1) Once the panel has reported the Speaker must schedule the report for
consideration by the [National] Assembly, with due urgency, given the
programme of the [National] Assembly.
(2) The President must be informed of the scheduli ng and any decision on the
report.
(3) In the event the [National] Assembly resolves that a section 89(1) inquiry be
proceeded with, the matter must be referred to the Impeachment Committee
established by this rule for that purpose.”
[280] At the conclusion of its consideration, the National Assembly may—
(a) decide to accept a positive recommendation of the Panel, and refer the
matter to the Impeachment Committee;
(b) decide to refuse a positive recommendation of the Panel. There may be
objectively valid grounds for doing so (this may occur where there is no
proper basis for the recommendations or as a result of limited or
unreliable information before the Panel);
(c) disagree with a recommendation by the Panel not to proceed with a
referral to the Impeachment Committee and resolve to refer the matter to
the Impeachment Committee. Again, there may be objective grounds to
do so and they include that the information before the Panel supports the
continuation of the process; or
(d) decide not to follow a positive recommendation of the Panel to proceed
to the Impeachment Committee. This may be in the absence of
discernible legitimate grounds to reject the recommendation of the Panel.
[281] None of the first three outcomes would serve as a basis to vitiate the rule, as none
are inconsistent with the Constitution. They ensure that the National Assembly is able
to discharge its power to decide whether an impeachment trial before the Impeachment
Committee is warranted or not. In doing so, the National Assembly is able to subject
the Report to proper scrutiny and thereby properly discharge its obligation. Removing
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the National Assembly’s power to vote on the Report effectively prevents the National
Assembly from doing any of the above, and divests it of all powers in relat ion to the
Report. In turn, it would unduly charge the Panel with the power to make decisions that
are binding on the National Assembly. This would amount to a radical retreat from the
holding of this Court in EFF II that it is the National Assembly, and it alone, that
determines the scope and form of the preliminary inquiry.
[282] The third judgment says that the National Assembly is not, after receipt of the
Report, required to assess the veracity and seriousness of the misconduct claims. 330 I
agree, but that is not what the National Assembly does at that point. It decides whether,
following the sifting that the Panel would have conducted, the inquiry should proceed
or not. In doing so, it oversees the work and the recommendations of the Panel created
to advise it. Why must the National Assembly be divested of this power in the
antecedent third step when there are means to challenge the exercise of the National
Assembly’s power in this step if it acts unlawfully?
[283] In this scenario, the concern would not just be that the National Assembly would
have been divested of the lawful competence to consider the Report, but its effect would
be to shut down any consideration of an outcome other than that which the Panel
determines. Such possible outcomes , as I have demonstrated, all fall within the scope
of the legitimate competencies of the National Assembly and are aligned with the
Constitution. Impugning that part of the rule has far-reaching consequences by closing
down the constitutional space that is given to the National Assembly in the
impeachment process. It is conceptually and substantively a very unsettling proposition
that the third judgment advances and one that is substantially at variance with the
that the third judgment advances and one that is substantially at variance with the
holding of this Court that it is the National Assembly that determines the form of the
preliminary inquiry. Of course , it must do so in a manner that is constitutionally
compliant.
330 See the third judgment at [333].
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[284] Despite the above, the third judgment takes issue with the power the rule vests
in the National Assembly to shut down the preliminary inquiry. 331 The conclusion of
the inquiry at this stage is not always unconstitutional or a fatal flaw as the
third judgment says. It may be warranted depending on the information then available.
Why must the National Assembly be compelled to hold an impeachment trial in the
absence of sufficient evidence in support of serious misconduct , or any other ground ?
Conversely, why must the National Assembly be obliged to terminate a section 89
process when the information before the Panel sup ports the continuation of such a
process? These are the outcomes that may materialise if the competence of the National
Assembly is to vote on the Report. These outcomes are, in my view, inconsistent with
the Constitution, as they prevent the National Assembly from discharging its powers
under section 89.
[285] There is nothing in the text of the rule that requires the National Assembly to
shut down the preliminary inquiry. It may do so, and, as I have pointed out, the
third judgment must be read to accept that there may well be instances when the
National Assembly will not make a determination on whether a removal ground exist s
and, arising from that, will not vote on a removal motion.
[286] The third judgment’s discomfort appears to be located in the fourth outcome that
I have referred to. This is where the National Assembly uses its power under the rule
to shut down the preliminary inquiry when the Panel, on sufficient evidence,
recommends that it proceed to the next stage. It articulates this concern as follows:
“Thus, a Member of the National Assembly may properly initiate impeachment
proceedings, supported by evidence; the Panel may conclude that sufficient evidence
exists; and yet the National Assembly may resolve not to proceed.”332
331 See the third judgment at [337].
331 See the third judgment at [337].
332 See the third judgment at [329].
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[287] And therein lies what the third judgment identifies as the fatal flaw. I have
already shown that , on the scenario that the third judgment contemplates, this will
automatically happen if the Panel does not recommend that the inquiry before the
Impeachment Committee be proceeded with. On the rule as it stands, it will also occur
if the National Assembly accepts a recommendation by the Panel not to proceed to the
Impeachment Committee stage and votes that way. In all these scenarios , however,
there will be a proper shutting down of the preliminary inquiry. It will, according to the
third judgment, only be improper to do so when the National Assembly refuses to act
on a recommendation by the Panel to continue with the section 89 process. And
ultimately, what distinguishes this impermissible outcome from the other permissible
outcomes is not the rule, but how the National Assembly in a given case exercises its
power when it votes on the Report and the recommendation of the Panel.
[288] The rule , however, requires the National Assembly to exercise its powers
lawfully and consistently with the Constitution. There is nothing in the rule that
exempts the National Assembly from doing so. Indeed , this Court reminded us in
Pharmaceutical Manufacturers333 that “[t]he exercise of all public power must comply
with the Constitution, which is the supreme law, and the doctrine of legality, which is
part of that law”.334
[289] And so we come back to the key question. Is the cause of the problem that the
third judgment identifies the rule or is it the manner in which the National Assembly
has exercised its power under the rule? For all the reasons I have given , it is the latter.
The rule is not facially constitutionally offensive. It does not prescribe how the National
Assembly must consider and deal with the recommendations of the Panel, nor does it
permit the National Assembly to act unlawfully. In its capacity -giving function, it
permit the National Assembly to act unlawfully. In its capacity -giving function, it
empowers the National Assembly to consider the Report and, in doing so, the National
Assembly would be at liberty to consider a variety of options arising from its
333 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa
[2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
334 Id at para 20.
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consideration of the Report. It is worth recalling that the operative part of rule 129I
says that, in the event that the National Assembly resolves that a section 89(1) inquiry
be proceeded with, the matter must be referred to the Impeachment Committee. There
is nothing in how this power is granted to the National Assembly that is offensive,
unconstitutional or permits the National Assembly to act unlawfully. If it is suggested
that the National Assembly acted unlawfully, which is what ultimately the
third judgment comes down to saying, then the problem the third judgment identifies
lies in the conduct of the National Assembly and not in the rule.
[290] The third judgment says that there are no criteria or directions in the NA Rules
that indicate how the National Assembly must process the Report.335 This is not correct.
Apart from having the duty to act lawfully, it must be recalled that the National
Assembly creates the Panel, which is required by the NA Rules to undertake a limited
assessment on the information before it to determine whether there is sufficient
evidence of misconduct. This is the question the National Assembly considers; this is
what shapes its determination. It does not answer a question “in the air” as it is
suggested, nor does it do so in the absence of criteria that form an integral part of the
NA Rules, which establish the Panel and give it its powers and function. The National
Assembly determines whether, in making the recommendation it does, the Panel
discharged the mandate it was given. If the National Assembly should be barred from
doing this, no other entity would be empowered to do so and this Court would have
elevated the Panel from an advisory structure to a decision -making structure – far in
excess of this Court’s already considerable powers.
[291] If the reasoning and conclusion of the third judgment is good, then conceivably
every unlawful exercise of power in terms of a lawful r ule would render the rule
every unlawful exercise of power in terms of a lawful r ule would render the rule
unlawful. Having a right to vote on a matter cannot be impugned because that vote may
be abused. Power exercised under any rule may be abused , but equally it may be
misinterpreted and the functionary may genuinely believe that i t is entitled to act in a
335 See the third judgment at [331].
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particular way. Courts deal with such issues regularly. It cannot mean that when there
is an error or abuse under a rule, the rule stands to be invalidated. This is particularly
so when there is nothing in the rule to countenance the error or the abuse and when there
are other lawful mechanisms to challenge the consequence of the error or the abuse.
The Constitution controls the exercise of all power it grants, and if the lawful power
given is abused or exercised in error then the remedy lies in how the power was
exercised rather than in the rule that gives the power. In all of this , I do not express a
view on the lawfulness or otherwise of the NA vote on the Report. My judgment does
not reach that point, as I conclude that our exclusive jurisdiction is not engaged on that
aspect of the dispute.
[292] On this very issue , this Court , in Van Rooyen , captured that very important
distinction between the adequacy of a rule and the exercise of power under a rule. It
said:
“Any power vested in a functionary by the law (or indeed by the Constitution itself) is
capable of being abused. That possibility has no bearing on the constitutionality of the
law concerned. The exercise of the power is subject to constitutional control and should
the power be abused the remedy lies there and not in invalidating the empowering
statute.”336
[293] This Court , in Bernstein,337 expressed similar views when dealing with a
challenge to the constitutionality of certain provisions of the Companies Act.338 It said:
“The fact that the power of subpoena may possibly be abused in a particular case to the
prejudice of the person subjected to such abuse does not mean that the power should,
for this reason, be characterised as infringing section 11(1) of the Constitution. The
law does not sanction such abuse; it merely recognises that it is difficult to control it
336 Van Rooyen above n 42 at para 37.
336 Van Rooyen above n 42 at para 37.
337 Bernstein v Bester N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC).
338 61 of 1973.
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and that a clear case of abuse must be established in order to secure a discharge from a
subpoena.”339
[294] The third judgment says that this judgment’s reliance on Van Rooyen and
Bernstein is “misplaced” because those cases “concern powers that are constitutionally
sound in their design but may be abused in particular instances ”.340 I have some
difficulty in appreciating the distinction the third judgment seeks to draw in this respect.
There is nothing constitutionally unsound about rule 129I. It simply allows the National
Assembly to consider the Report and decide whether the inquiry should proceed further.
The fact that a particular undesirable outcome may emerge from an exercise of this
power does not mean that the rule stands to be impugned. If the power is exercised to
achieve an outcome not sanctioned by law, then it is the exercise of that power that must
be challenged. Van Rooyen and Bernstein remain relevant and point in the direction of
the remedy to address the real source of the third judgment’s discomfort – the manner
in which the National Assembly exercised its power under rule 129I.
[295] These observations fortify my disagreement with the third judgment and I am
unable to agree with its conclusion that the rule falls foul of the Constitution. The rule
serves a very important purpose in enabling the National Assembly to properly
discharge its function under section 89 and does not permit the National Assembly to
exercise its power unlawfully. Excising the voting power of the National Assembly
from the rule will not only impermissibly constrain the power of the National Assembly
but will lead to consequences at odds with the constitutional scheme. In particular, and
for the sake of emphasis, I repeat: it will compel the National Assembly to convene the
Impeachment Committee even when the recommendation of the Panel to do so is
unsustainable in law.
[296] Equally, it will also prevent the National Assembly from convening the
[296] Equally, it will also prevent the National Assembly from convening the
Impeachment Committee when the recommendation of the Panel not to move to the
339 Bernstein above n 337 at para 52.
340 See the third judgment at [378].
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Impeachment Committee is unsustainable in the face of compelling information before
it. Both these outcomes are not only undesirable but will effectively pre vent the
National Assembly from discharging its obligations under section 89. This Court
should tread with extreme caution and restraint when the consequence s of what it does
interfere with the powers of the National Assembly in ways that are impermissibl e. It
has serious implications for the constitutional design and how power is allocated in
accordance with that design.
[297] Finally, there is the real risk that if the rule is impugned on the basis that the
National Assembly should be barred from considering the recommendation of the Panel
in all instances or even in only some instances , it would render the work of the Panel
beyond scrutiny. The Panel has its powers and functions given to it by the National
Assembly under rule 129G and it must determine whether sufficient evidence of serious
misconduct exists. The National Assembly must then consider the recommendation
emerging from the Panel as the reasoning and conclusion of the Panel is not immune
from scrutiny. There is nothing untoward about this.
[298] Removing the National Assembly’s power to do so will render the obligation of
the Panel, under rule 129G, academic. If the Panel makes a recommendation, either
positive or negative, about the sufficiency of the evidence, that recommendation would
carry the day whatever legal inadequacies may attach to it. In fact, it would not be a
recommendation but a decision that will not be the subject of any consideration or
scrutiny by the National Assembly, but would simply become binding on the National
Assembly. This Court cannot remove the power of the National Assembly and
reallocate that power to the Panel – a structure created by and that reports to the National
Assembly. It certainly cannot do that when the concern the third judgment has
Assembly. It certainly cannot do that when the concern the third judgment has
identified is capable of being properly addressed through other legal means.
[299] In all of this , it is clear that the issue of concern that in part triggered these
proceedings was a view that the NA vote was unlawful. I have shown that even if that
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were the case, the basis for the alleged unlawfulness is not to be located in rule 129I
but, rather, the vote taken under that rule. There is no basis to impugn the rule.
[300] It is for these reasons that I disagree with the reasoning and conclusion of the
third judgment.
[301] Had I commanded the majority, I would have made the following order:
1. This Court has exclusive jurisdiction to hear the application in respect of
the challenge to rule 129I.
2. The challenge to the constitutionality of rule 129I is dismissed.
3. This Court does not have exclusive jurisdiction in respect of the challenge
to the vote of the National Assembly taken on 13 December 2022.
4. Direct access to challenge said vote is refused.
5. There is no order as to costs.
MAJIEDT J (Mhlantla J and Tolmay AJ concurring):
Introduction
[302] I have had the pleasure of reading the well -crafted and extensively reasoned
judgments of Maya CJ and Kollapen J. I agree with all aspects addressed in the second
judgment, save in regard to the important issue of the constitutionality of the impugned
rule 129I. In that regard, I agree with the first judgment that the rule is constitutionally
invalid, but I do so for different reasons.
[303] As a reminder – in the sixth prayer of the notice of motion, the EFF challenges
the constitutionality of rule 129I as being inconsistent with the Constitution, as it allows
the National Assembly to vote against a possible referral to the Impeachment
Committee, despite a finding of sufficient evidence against a sitting President by the
Panel, alternatively, because the rule is impermissibly vague . It seeks a declarator to
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that effect and an amendment to the rule. 341 The central question is whether rule 129I
ensures that the National Ass embly can effectively discharge its obligation under
section 89(1), read with section 55 of the Consti tution. For the reasons that follow, I
conclude that it does not.
[304] A constitution reflects the soul of a nation. 342 It speaks to that nation’s beliefs,
aspirations and aims. A constitution, as supreme law, amongst many other things,
directs how the nation is to be governed; in this instance, how its Executive Head, the
President, is to be removed from office. The impugned rule is one of a set of rules that
are meant to expand on the provisions for removal (often simply referred to as
“impeachment”; these terms are used interchangeably in this judgment) contained in
section 89 of the Constitution.343
[305] Accountability has been highlighted as one of the central values of our
Constitution, serving as a check on unrestrained power, lest that power be abused. 344
Section 89 is one of the key provisions that fulfils the purpose of a check on presidential
power, by holding the President accountable to Parliament. The section is amplified by
rule 129I as part of the rules adopted by Parliament to meet that constitutional
requirement.
[306] Ours is a constitutional democracy, where the will of the people is reflected
proportionally in the composition of the political parties r epresented in Parliament as
the people’s representatives. This ensures “government by the people”. Parliament is
341 The amendment that the applicants seek would make provision for the automatic referral of a sufficient
evidence finding to an Impeachment Committee to conduct a full investigation so as to give effect to section 1(c)
and (d); 42(3); 48; 55(2)(a) and (b)(i) ; 57(1)(b); 92(2) and 96(1), (2)(b) and (2)(c) of the Constitution. As an
alternative, it seeks an amendment providing suitable guidelines as to how the discretion of the National Assembly
is to be exercised in order to prevent political interference preceding the commencement of impeachment
proceedings.
342 Matatiele Municipality v President of the Republic of South Africa [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006
(5) BCLR 622 (CC) at para 97 (concurring judgment of Sachs J) and S v Acheson 1991 (2) SA 805 (NM) at 813A.
343 Quoted at n 7 above.
344 EFF I above n 2 at para 1 and UDM v Speaker above n 55 at paras 2-3.
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unequivocally directed by the Constitution to scrutinise and oversee executive action
(including the exercise of presidential powers). This it does on behalf of the people.345
[307] Section 89 is under chapter 5 of the Constitution. That chapter deals with the
checks and balances on the President and the National Executive. An important related
provision is section 55(2) of the Constitution, which requires the National Assembly to
provide for mechanisms to ensure that all executive organs of state in the national sphere
of government are accountable to Parliament and to maintain oversight over the exercise
of executive authority.
[308] The system of checks and balances and the principle of separation of powers 346
are essential cogs in a constitutional system like ours, where powers are devolved to the
three arms of the state. 347 They serve to ensure that powers are exercised only by the
arm of the state in which they vest and to prevent their abuse.348 In relation to these two
central features of our Constitution, in the Certification judgment, this Court said:
“The principle of separation of powers, on the one hand, recognises the functional
independence of branches of government. On the other hand, the principle of checks
and balances focuses on the desirability of ensuring that the constitutional order, as a
totality, prevents the branches of government from usurping power from one another.
In this sense it anticipates the necessary or unavoidable intrusion of one branch on the
terrain of another.”349
[309] A brief recap: in EFF I, this Court held that the National Assembly had failed in
its constitutional duty to hold the then-President accountable for failing to implement
the Public Protector’s remedial action contained in her report of 19 March 2014.
345 See section 42(3) of the Constitution, quoted at n 36 above. See also EFF II above n 3 at paras 141-2.
346 As to the separation of powers principle, see Executive Council, Western Cape Legislature v Presi dent of the
Republic of South Africa [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC). See also O’Regan
“Checks and Balances: Reflections on the Development of the Doctrine of Separation of Powers Under the South
African Constitution” (2005) 8 Potchefstroom Elektroniese Regsblad/Potchefstroom Electronic Law Journal 120.
347 EFF II above n 3 at para 133.
348 Id.
349 Certification judgment above n 258 at para 109.
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Pursuant to that finding and concomitant orders, in EFF II, this Court had to consider a
complaint that the National Assembly had failed to put in place mechanisms to hold the
President accountable in terms of section 89(1). This Court held that the failure was a
violation of the Constitution and that the N ational Assembly must comply with
section 237 of the Constitution and make rules for a section 89(1) removal without
delay.
[310] And now we have reached the question concerning the adequacy of the rules put
in place for this purpose, more particularly rule 129I. Succinctly stated, the present
complaint is that the mechanism chosen by Parlia ment to meet the requirements
stipulated in EFF II perpetuates the same abuse that this Court has already sanctioned
in that judgment as being institutionally impermissible. As Froneman J observed in
EFF II, “[w]hether the order [made in EFF II] will achieve its aim is for history to
determine”.350 We have now arrived at that point. It is important to bear in mind that
at this juncture the merits of the Report, on which much time was spent in both the
written and oral submissions of the parties, is not the issue here. Instead, we are
concerned with an anterior question, the constitutionality of the impugned rule.
Adequacy of the impugned rule
[311] Self-evidently, the set of rules, and, in particular, the impugned rule, must be
effective mechanisms to fulfi l the purpose of section 89(1). It must be fit for purpose
and constitutionally compliant. Whether these requirements have been met is to be
answered with reference to the Constitution and the findings of this Court in EFF II.
That judgment bears brief consideration to chart the further reasoning.
[312] EFF II makes plain that impeachment is a punitive measure – in terms of
section 89(2), a President removed from office by reason of a serious violation of the
Constitution or the law, or for serious misconduct, may not receive any benefits of that
Constitution or the law, or for serious misconduct, may not receive any benefits of that
350 EFF II above n 3 at para 286 (emphasis added).
MAJIEDT J
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office and is barred from holding any public office.351 For this reason, impeachment is
subject to conditions. There must be a ground for removal listed in section 89(1) and a
supermajority vote is required.
[313] The importance of the role of the National Assembly in the impeachment process
cannot be overstated. As the people’s representatives, they must ensure that the
President, “the first citizen of this country” with “the highest calling to the highest office
in the land”,352 is held accountable. Everyone who holds public office, and, I daresay,
the President in particular, because of his unique position, is accountable to the
Constitution and the law. This is one of the cornerstones of our democracy. And, in
the case of section 89(1) read with section 55 of the Constitution, it is the National
Assembly which must ensure that there are effective mechanisms in place to remove a
sitting President where the constitutional prerequisites are met.
[314] In what follows, I will endeavour to show that rule 129I removes that power from
the National Assembly. This is because—
(a) in violation of section 89(1), it deprives the full National Assembly of the
opportunity to vote on the existence of a ground for impeachment; and
(b) it precludes a full ventilation of the facts that inform the vote.
[315] These two shortcomings will be discussed in turn. It bears emphasis that, while
there is nothing in section 89 which requires the National Assembly to impeach the
President (it remains a discretionary power throughout) , the rules it adopts cannot
frustrate impeachment from serving as a crucial constitutional backstop where
necessary. This is to ensure the constitutional accountability of the holder of this
country’s highest office.
351 Id at para 138.
352 EFF I above n 2 at para 20.
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Rule 129I does not pass constitutional muster
Deprivation of the power to vote on the existence of a ground of impeachment
[316] It bears emphasis that the power of removal vests in the National Assembly
alone. What does this power entail? It is the National Assembly itself that must make
the determination that one of the grounds for removal exists. The National Assembly
is constitutionally obliged to determine whether the President has committed conduct
falling within section 89(1) and that de termination must be rational, evidence -based
and attributable to the National Assembly as the ultimate decision-maker.
[317] In EFF II, this Court interpreted section 89(1) as entailing a structured two-stage
process. First, there must be an investigative and evaluative stage in which the relevant
facts are gathered and assessed. Second, there must be a decision stage in which the
National Assembly determines whether the jurisdictional facts for removal exist and, if
so, whether to remove the President. Maya CJ deals at length with these aspects in the
first judgment, and I need say no more about them.
[318] The crucial point is this : while the investigative and evaluative tasks may be
performed by committees or through other mechanisms, the constitutional obligation to
determine whether a ground for removal exists rests solely with the National Assembly.
That entity, and it only, must engage with and decide th at question on the basis of the
available evidence.
[319] EFF II explained:
“[A]ny process for removing the President from office must be preceded by a
preliminary inquiry, during which the [National] Assembly determines that a listed
ground exists. The form which this preliminary inquiry may take depends entirely upon
the [National] Assembly. It may be an investigation or some other form of an inquiry.
It is also up to the [National] Assembly to decide whether the President must be
afforded a hearing at the preliminary stage.”353
afforded a hearing at the preliminary stage.”353
353 EFF II above n 3 at para 180.
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[320] Properly understood, section 89(1) prescribes a clear s equence: the National
Assembly must first determine whether a ground exists, and only thereafter does it
decide whether to remove the President. There is no constitutional requirement for a n
antecedent step in which the National Assembly determines whether it will engage in
that process at all. The first judgment comprehensively elaborates on the process and
nothing more need be said about it.
[321] Diagrammatically, the full impeachment process looks like this:
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[322] The difficulty is that rule 129I inserts such a n antecedent third step prior to
rule 129J. According to that rule, once a motion is initiated and referred to a Panel, the
Panel conducts a preliminary assessment and reports on whether sufficient evidence for
an inquiry exists. Thereafter, the National Assembly is required to vote, not on whether
a section 89 ground exists nor on whether the President should be removed (that is, the
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MAJIEDT J
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two steps envisaged in EFF II), but on whether a section 89 inquiry should proceed
further. If the National Assembly resolves not to proceed, the process terminates at that
point, and the section 89(1) impeachment motion is never voted on. The National
Assembly never gets to consider either stage one or stage two. This is a fatal flaw and
a violation of the Constitution.
[323] The difficulty emanates from the placement of the impugned rule within the
scheme of the NA Rules. Rule 129I is triggered immediately after the Panel has
reported on whether sufficient evidence exists to warrant the commencement of an
impeachment pr ocess. It thus operates before the Impeachment Committee has
undertaken its investigative function. That investigation is not merely a formality. It is
the mechanism through which allegations are tested, witnesses are heard and the factual
basis for the exercise of the National Assembly’s power is established.
[324] Before the present iteration of the NA Rules dealing with removal was in place,
there was provision for an ad hoc committee. In that regard, EFF II strongly cautioned
against a scenario like the one we are facing here. This Court observed:
“The rules relevant to the establishment of ad hoc Committees do not determine the
size of a committee. Nor do they require that all parties be represented. They merely
state that the resolution establishing such committee must specify the number of
members to be appointed or their names. If more than one party is represented, the
representation mirrors their representation in the [National] Assembly. The majority
party would have majority representation. This raises the risk of an impeachment
complaint not reaching the [National] Assembly, even if the resolution establishing the
committee were to stipulate that what was before the committee may not be decided by
consensus, as provided in rule 255. A decision by members of the majority party in the
consensus, as provided in rule 255. A decision by members of the majority party in the
ad hoc Committee may prevent an impeachment process from proceeding beyond the
committee, to shield a President who is their party leader.
. . .
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By parity of reasoning, the committee system is not suitable here too. The ad hoc
Committees do not constitute a mechanism contemplated in section 89(1) for all the
reasons set out in this judgment.”354 (Footnote omitted and emphasis added.)
[325] Rule 129I inserts a threshold “gatekeeping” stage that precedes, and may wholly
displace, the constitutionally mandated two-stage inquiry confirmed in EFF II. Instead
of moving directly from investigation to determination by way of a two-stage inquiry,
the process is, first, a preliminary assessment by the Panel; second, a vote by the
National Assembly on whether to proceed; and, only if that vote is favourable, third, a
full inquiry and eventual determination.
[326] The Constitution requires the National Assembly to move forward through a
two-stage process culminating in a determination. The NA Rules, however, require the
National Assembly first to step back and decide whether to engage in that process at all
and permit them to halt the process before it even begins. This is not only contrary to
constitutional prescripts, but also dissonant with this Court’s judgment in EFF II.
[327] It may be argued that the establishment of the Panel is the first investigative stage
contemplated in EFF II, and that the National Assembly’s vote on the Panel’s
recommendation preserves its role as ultimate decision -maker. While it is correct that
the Panel performs an evidentia ry and preliminary assessment function, this does not
cure the defect. The difficulty lies not in who makes the deci sion, but in what decision
is made . The Constitution requires the National Assembly to determine whether a
section 89 ground exists. But rule 129I requires the National Assembly to decide only
whether to proceed with an inquiry. These are completely different questions.
[328] Even if the National Assembly were to consider the Report, its vote at the
[328] Even if the National Assembly were to consider the Report, its vote at the
rule 129I stage remains a procedural decision rather than a substantive constitutional
determination. It is not a finding about whether the President has committed a serious
violation or misconduct, nor does it pronounce on his or her inability to perform the
354 EFF II above n 3 at paras 192 and 194.
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functions of office . The decision is merely whether to continue with an investigation
which is at that stage incomplete . The fact that the National Assembly is formally the
ultimate decision -maker is therefore irrelevant. A constitutionally required decision
cannot be replaced with a discretionary decision about whether to make that decision.
[329] Thus, a Member of the National Assembly may properly initiat e impeachment
proceedings, supported by evidence; the Panel may conclude that sufficient evidence
exists; and yet the National Assembly may resolve not to proceed . In that event, the
question pertinently raised in section 89(1), whether the President has committed a
ground for removal, is never determined by the National Assembly at all, despite a
motion properly being brought before the National Assembly. The motion brought to
impeach the President is therefore technically never voted on. This plainly deprives the
National Assembly of its constitutional power in section 89(1), as explicated in EFF II.
[330] This Court held in EFF II:
“What needs to be decided though is whether the processing of that motion complied
with the requirements of section 89(1). If it did, that would be the end of the matter.
This is because section 89(1) does not oblige the [National] Assembly to remove the
President from office, even where one or more of the listed grounds are established.
On the contrary, the [National] Assembly retains a discretionary power to remove the
President.
But the process envisaged in section 89(1) involves necessarily an antecedent
determination by the [National] Assembly to the effect that one of the listed grounds
exists. This is because those are grounds for the President’s removal. With regard to
the motion of 31 March 2016, this was not done. It was simply tabled, debated and
voted on.”355 (Emphasis added.)
[331] Rule 129I provides that once the Panel has issued its report, that report must be
[331] Rule 129I provides that once the Panel has issued its report, that report must be
referred to the plenary National Assembly for consideration. The section 89(1) inquiry
only proceeds when the National Assembly so resolves. Rule 129I offers no criteria or
355 Id at paras 203-4.
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direction for the National Assembly’s consideration of the report. The interposition of
the National Assembly’s decision between bodies which the rules have chosen to
establish whether a listed ground exists – the Panel and the Impeachment Committee –
appears to be a “sifting mechanism” aimed at deciding whether an impeachment inquiry
ought to continue. But it is not a determination on the merits of the underlying
impeachment motion. This leads to a curious and utterly untenable position. The
rule 129I vote, which is unconnected to any of the phases of the impeachment inquiry,
has the potential to prevent the National Assembly’s consideration of whether a listed
ground exists.
[332] This is akin to the situation where an individual M ember of the National
Assembly submits a Bill for consideration, but, as a “sifting mechanism”, the National
Assembly votes as a whole not to allow the Bill to be tabled. In Oriani-Ambrosini, this
Court made plain that such a state of affairs is not permissible:
“The ‘rights of all to be heard and have their views considered’, within the context of
the legislative process, dictate that individual [M]embers ought to have the power to
initiate or prepare legislation. In this way, an opportunity would be availed to them to
promote their legislative proposals so that they could be considered properly.”356
[333] The fact that the National Assembly never applies its mind to the section 89(1)
question is further underscored by rule 129M, which takes place at the Impeachment
Committee stage. That stage is never reached if the National Assembly decides not to
proceed beyond the Panel. Rule 129M provides that once the National Assembly has
resolved to proceed, the Impeachment Committee must “establish the veracity and,
where required, the seriousness of the charges”. This necessarily means that the
National Assembly’s consideration under rule 129I is not related to the veracity of the
National Assembly’s consideration under rule 129I is not related to the veracity of the
report. Nor does it form part of the National Assembly’s determination of whether a
listed ground has been established. But these are precisely the questions that define the
first stage of the section 89 inquiry. As was held in the passage cited above in EFF II,
356 Oriani-Ambrosini above n 173 at para 48.
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it is this evaluative exercise that must inform the National Assembly’s determination of
whether a ground for removal exists.
[334] And yet, the impugned rule requires the National Assembly to decide whether to
proceed before this evaluative exercise has been undertaken. The National Assembly
is thus required to make a threshold decision without the benefit of the very findings
that are constitutionally relevant to the first-stage determination. More fundamentally,
as stated, the structure of the NA Rules demonstrates that the National Assembly has
not as yet applied its mind to the first-stage question at all. Instead, the issues of veracity
and seriousness are expressly deferred to a later process, contingent upon the National
Assembly first resolving to proceed.
[335] If the National Assembly were in fact performing the first stage contemplated in
EFF II, it would necessarily be engaging with and determining the veracity and
seriousness of the allegations. But the NA Rules make clear that it does not do so at the
rule 129I stage. Instead, it is asked only whether an inquiry should take place, leaving
the substantive evaluation for a later stage, which may never occur. The National
Assembly is therefore required to make a decision in the absence of the information that
the Constitution requires for that decision. The result is that the preliminary stage does
not facilitate the constitutional inquiry; it displaces it. Instead of enabling the National
Assembly to determine whether a ground exists, the NA Rules permit the National
Assembly to avoid making that determination altogether.
[336] This also undermines the majoritarian design of section 89(1). The Constitution
envisages that the decisive judgment, whether to remove the President, is to be taken
by a s upermajority of the National Assembly after engagement with the merits. But,
because rule 129I allows the process to be halted at the threshold, the National
because rule 129I allows the process to be halted at the threshold, the National
Assembly is never called upon to make that value judgment.
[337] In summary, rule 129I introduces an impermissible preliminary step that allows
the National Assembly “ to decide whether to decide ”. It inserts a gatekeeping
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mechanism that enables the National Assembly to terminate the process before
performing its constitutionally-mandated function of determining whether grounds for
impeachment exist once a motion for impeachment commencing the section 89(1)
process has been brought. The fact that the National Assembly votes on the Panel’s
recommendation does not cure this defect, because it is not required to decide the
constitutionally prescribed question. By permitting the process to end before any
determination of the existence of a section 89 ground is made, the rule undermines the
two-stage structure identified in EFF II, frustrates the accountability purpose of
section 89 and defeats the very constitutional mechanism it purports to give effect to.
It is therefore unconstitutional.
The section 89 power cannot be exercised without a factual foundation
[338] Both the election and removal of the President confer a wide discretion on the
National Assembly, which, in the case of an election, makes its ultimate decision by a
majority vote; and, in the case of impeachment, by a supermajority vote. In both
instances, the National Assembly acts as an informed representative of the people. In
My Vote Counts II ,357 this Court recognised that “much more is required of a
choice-maker if the choice to be made is political in character and affects important
national interests”.358
[339] As far as impeachment is concerned, the National Assembly ’s obligation to
inform itself is thus elevated. In that sense, impeachment is different from an ordinary
exercise of majoritarian voting. It is not a vote up in the air. As section 89(1) makes
clear, the National Assembly may remove the President from office only on the grounds
of a serious violation of the Constitution or the law, serious misconduct or inability to
perform the functions of office. A failure to appreciate this difference is to simply
render impeachment a motion of no confidence with a higher threshold.
render impeachment a motion of no confidence with a higher threshold.
357 My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17; 2018 (5) SA 380 (CC);
2018 (8) BCLR 893 (CC).
358 Id at para 27.
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[340] As stated, impeachment is punitive. If the National Assembly adopts a
mechanism that is incapable of arriving at such a finding, it would have failed its
constitutional obligation to preserve the efficacy of impeachment as an accountability
tool. This is so even if that mechanism employs majoritarian voting. The preservation
of the National Assembly’s discretion to decide whether a section 89(1) ground has
been established suggests that this finding is partly factual (does there exist conduct
capable of meeting such a ground?) and partly normative (does the conduct meet the
level of seriousness envisaged by that section?). It bears repetition that, as EFF II
recognises, this question is for the National Assembly, and it alone, to decide. The only
issue this Court may consider is whether the means employed by the National Assembly
enable it to decide that question when necessary.
[341] In considering this issue, it is important to bear in mind that, as stated in EFF II,
“the process envisaged in section 89(1) involves necessarily an antecedent
determination by the [National] Assembly to the effect that one of the listed grounds
exists”.359 Self-evidently, the grounds cannot possibly be established without some
form of factual finding. This finding is an essential addition to the National Assembly’s
exercise of majoritarian voting, whether in the normative determination as to whether a
ground has been established or, if such a ground has been established, the eventual
decision whether to remove the President from office.
[342] The difficulty is that, in this instance, we have the exercise of raw power granted
to the National Assembly without it first considering the proposal on some factual basis.
This is especially so in the context of section 89(1) where the Constitution requires the
establishment of a listed ground. The National Assembly, in the exercise of its
establishment of a listed ground. The National Assembly, in the exercise of its
discretion, is free to select the means for doing so, including by a majority vote. But
rule 129I completely destroys that discretion. The rule subjects the discretion to an
antecedent majority vote , aimed at establishing whether a listed ground needs to be
established (which the NA Rules already provide for at an earlier stage), rather than
359 EFF II above n 3 at para 204.
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providing a process for determining whether such a ground exists. That vote, as the
NA Rules stand, relates neither to the factual finding nor to the normative determination
of whether a listed ground exists.
[343] The addition of such a layer – extraneous to the section 89(1) process, and indeed
capable of frustrating its proper consideration – is therefore unconstitutional. It is not
the majoritarian nature of the rule 129I vote that renders it so; rather, it is the capability
of the vote to lead a valid impeachment motion into the proverbial cul -de-sac without
allowing a section 89(1) process to take effect at all. This risks transmogrifying the
section 89(1) process into a brutum fulmen (a meaningless, ineffective exercise), where
the process may be aborted before any consideration of its merits takes place on a set
of facts before the National Assembly as decision-maker. A related problem is the lack
of transparency and openness in the process.
Transparency and openness as conditions for the legitimate exercise of the
section 89 power
[344] Section 89 vests the power of removal in the National Assembly as a
representative body acting on behalf of the public. That function is not exercised in
private. It is a public power, directed at a matter of the highest constitutional
significance, and it must therefore be exercised in a manner that is open, transparent
and capable of public scrutiny. These requirements do not limit majoritarian
decision-making; they enable it by ensuring that the National Assembly’s exercise of
power is transparent, accountable and understandable to those in whose name it acts.
[345] This Court has long recognised that democratic decision-making is strengthened,
not weakened, by transparency.360 Openness ensures that both the information relevant
to a decision and the reasons underlying it are exposed to scrutiny. In the context of
360 See among others Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (1) BCLR 1
(CC); 2006 (2) SA 311 (CC) at paras 111 -13 and AmaBhungane Centre for Investigative Journalism NPC v
President of the Republic of South Africa [2022] ZACC 31; 2023 (2) SA 1 (CC); 2023 (5) BCLR 499 (CC) at
paras 64-5 and 70.
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impeachment, where the National Assembly is called upon to assess allegations of
serious misconduct or co nstitutional violation, transparency is particularly important.
It allows the public to understand the basis upon which their representatives act and to
evaluate whether that action is consistent with the constitutional standards governing
removal.
[346] Rule 129I subverts this requirement of transparency. It permits the National
Assembly to terminate the impeachment process at a stage whe n the relevant factual
and evaluative issues have not been publicly ventilated in a structured and
comprehensive manner. The Panel conducts its work on a limited written record, and
the more rigorous processes of testing evidence, assessing veracity and evaluating
seriousness are reserved for the Impeachment Committee stage. If the process is halted
before that stage is rea ched, the National Assembly’s decision is taken without the
benefit of a full and public exposition of the issues.
[347] The consequence is that the decisive exercise of power may occur in conditions
where neither the evidentiary basis of the allegations, nor t heir constitutional
significance, has been fully developed or publicly examined. The National Assembly
may debate the Report, but it is not required to engage in a process that exposes the
factual disputes and evaluative judgments that lie at the heart of section 89. In this way,
the rule permits a decision of great constitutional consequence to be taken without the
level of transparency that such a decision demands.
[348] The absence of transparency has consequences beyond the immediate decision.
Where evide nce is properly tested and placed in the public domain, it equips the
electorate with information that bears directly on the exercise of political choice,
including at the next election. It also enhances the conditions under which Members of
the National Assembly themselves deliberate. A process that brings to light the full
the National Assembly themselves deliberate. A process that brings to light the full
factual matrix and its constitutional implications creates space for M embers to engage
with the merits of the matter, rather than relying on incomplete accounts or partisan
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positions. In this way, transparency strengthens both public and parliamentary
judgement without dictating their outcomes.
[349] This does not mean that the National Assembly is obliged to reach any particular
outcome, nor does it diminish its authority to decide whethe r to remove the President.
It means only that the process through which that authority is exercised must be
sufficiently open to allow for meaningful public scrutiny of the issues and the decision.
By enabling the process to be concluded before that leve l of transparency is achieved,
rule 129I undermines the conditions for properly exercising the section 89 power. For
that reason, it is inconsistent with the Constitution.
[350] The NA Rules envisage that the neutral, fact -finding function aimed at
objectively determining legal, and not political, questions performed by the
Impeachment Committee must operate free from premature political intervention .
Rule 129I disrupts that sequence. By allowing the process to be terminated before the
Impeachment Committee has performed its function, it prevents the National Assembly
from receiving the very material that is necessary to inform its judgement. In doing so,
it does not preserve majoritarianism, but deprives it of its proper foundation.
[351] It bears emphasis that i f majoritarian control applies at the preliminary stage,
then the section 89 mechanism can be neutralised before any facts are ventilated and
exposed to public scrutiny. As stated, the preliminary stage serves a procedural and
informational function. The objective is to ensure that the National Assembly’s finding
as to whether a ground of removal exists is informed by the full and correct facts. The
suggestion in the second judgment that majoritarianism must operate with equal force
at this stage is thus unsustainable, as it collapses the distinction between objective
fact-finding, which admits no partisanship, and the final decision whether to remove the
fact-finding, which admits no partisanship, and the final decision whether to remove the
President, which takes on a more political character.
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Divergence between the first judgment and this judgment on the constitutionality of the
rule
[352] The difference between the first judgment and this judgment lies not in outcome,
but in the point of constitutional departure and the focus of the inquiry. The first
judgment is primarily concerned with t he consequences of permitting the National
Assembly to intervene at a stage where the process remains evidentiary and incomplete.
In particular, it emphasises that where the Panel finds that sufficient evidence exists,
the National Assembly may not termin ate the process at that point, as this would
foreclose the further investigation necessary to properly ventilate the issues and give
effect to section 89. It thus focuses on preventing the premature termination of a
potentially meritorious impeachment process.
[353] This judgment, by contrast, proceeds from the constitutional obligation resting
on the National Assembly itself. It asks whether the mechanism adopted enables the
National Assembly to perform the determination that section 89(1), read with EFF II,
requires of it. On this approach, the central defect in rule 129I is that it does not direct
the National Assembly to determine whether a listed ground exists, but instead requires
it to decide whether to proceed with an inquiry. That decision is neither structured nor
guided by any criteria linked to section 89(1). It is, in that sense, colourless. The
consequence is that the rule permits the National Assembly to avoid making the
constitutionally required determination altogether or to act without a su fficient factual
foundation to do so.
[354] This difference between the two judgments manifests most clearly in the
treatment of the Panel’s findings. The first judgment recognises that an impeachment
process may, in appropriate circumstances, fail at an initial sifting stage, with the result
that no further investigation is required. This judgment accepts that position, but insists
that no further investigation is required. This judgment accepts that position, but insists
that even in such a case the National Assembly must still perform its constitutional
function by determining, on the material bef ore it, that no ground for removal exists.
Where, however, the Panel finds that there is sufficient evidence, the National Assembly
cannot make that determination without a further investigation because the factual
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record is not yet complete. In this way , while both judgments require further
investigation where sufficient evidence exists, this judgment additionally emphasises
that the National Assembly must always determine the existence or non -existence of a
ground, and that it must do so on a sufficiently developed factual basis. Both judgments
also invoke the importance of transparency, but they do so for different reasons: the first
judgment treats transparency as a democratic value that ensures fuller engagement with
the process, whereas this judgment treats it as a condition precedent for the proper and
informed determination by the National Assembly of whether a ground for removal
exists.
Second judgment
Criticism regarding the decisions of the Panel and the removal of discretionary
power from the National Assembly
[355] The starting point is that the response of the second judgment proceeds from a
misapprehension of the central claim advanced here. This judgment does not seek to
limit the National Assembly’s discretion, nor does it suggest that the Report is beyond
scrutiny. Criticisms directed at those propositions, therefore, do not engage with the
reasoning of this judgment. The point made is a narrower, but decisive one – the
impugned rule fails to require the National Assembly to answer the question that the
Constitution obliges it to determine. That is the crux of the outcome and underlying
reasoning of this judgment.
[356] It may be contended that rule 129I is constitutionally compliant on the basis that
the National Assembly remains the ultimate dec ision-maker. On this view, once the
Panel reports to it, the National Assembly may, by majority vote, decide whether to
proceed with an inquiry. If the Panel finds no sufficient evidence and the National
Assembly agrees, the matter may validly end there. Conversely, if the National
Assembly disagrees with the Panel and considers that further investigation is warranted,
Assembly disagrees with the Panel and considers that further investigation is warranted,
it must be entitled to refer the matter to an Impeachment Committee.
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[357] This argument conflates the National Assembly’s authority with the content of
the decision it is constitutionally required to make. Even if rule 129I is characterised
as part of the preliminary inquiry ( stage one), the question the National Assembly is
required to answer at that stage remains the wrong one. A vote on whether to proceed,
framed either as the National Assembly’s agreement with a “no sufficient evidence ”
finding, or otherwise, is not a determination that a section 89(1) ground does exist. It
is a threshold judgment about whether further inquiry is warrante d on what can at that
juncture only be an incomplete record. Rule 129I provides no direction as to what the
National Assembly is deciding or on what basis.
[358] The rule is not framed as a determination of whether a listed ground exists, nor
does the rule pre scribe the criteria to be applied. It does not require the National
Assembly to consider the elements of section 89(1) or to assess the veracity or
seriousness of the allegations. The consequence is that, at the rule 129I stage, the
National Assembly is invited to cast a vote that is devoid of reason and direction. The
rule does not instruct the National Assembly what question they are to answer, nor does
it anchor the vote to the criteria in section 89(1). Instead, it leaves the decision
unstructured and unguided by any defined standards. The National Assembly is not
required to assess the veracity or seriousness of the allegations , or the existence of a
constitutional ground. Those inquiries are postponed for later determination.
[359] The result is a vot e that is, in effect, up in the air, a decision taken without
guidance and lacking direction in respect of both form and substance. Neither the object
of the vote nor the basis upon which it must be made is specified. In this way, rule 129I
permits a discretionary and potentially arbitrary exercise of power. That is incompatible
permits a discretionary and potentially arbitrary exercise of power. That is incompatible
with the requirement that the National Assembly’s determination be rational,
evidence-based and directed to the existence of a section 89 ground. If rule 129I is to
be constitut ionally compliant, it would, at a minimum, need to require the National
Assembly to vote on whether the facts disclose a listed ground. The redrafting of the
rule should ultimately be left to Parliament, and consequently, nothing further is said
about that here.
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[360] The second judgment also argues that rule 129I is constitutionally permissible
because it preserves the N ational Assembly’s role as the ultimate decision -maker by
allowing it to accept, reject or override the Panel’s recommendations. It contends that
this power is necessary to ensure proper scrutiny of the Report and to prevent the Panel
from becoming the de facto decision -maker. Removing this power, it argue s, would
improperly bind the National Assembly and undermine its authority to determine the
form and scope of the preliminary inquiry.
[361] There are at least two reasons why this argument misses the point. First, the
constitutional difficulty does not arise from the National Assembly’s ability to engage
with, scrutinise or even disagree with the Panel. Those powers are unobjectionable and
must be preserved if the National Assembly is to remain the ultimate decision -maker.
The decision can only be made by the National Assembly – it is the only constitutional
entity empowered to do so.
[362] The problem, here too, is the decision required at the rule 129I stage. It bears
repetition that the rule does not direct the National Assembly to determine whether a
section 89(1) ground exists, nor does it require any assessment of veracity or
seriousness. Instead, it asks only whether to proceed with an inquiry. That is a
procedural, indeterminate question and not the constitutional ly mandated one. While
outcomes (a) to (c) listed by the second judgment 361 may, in particular circumstances,
reflect rational engagement with the Report, they do not address the constitutional
difficulty. The rule does not require the National Assembly, when making any of these
decisions, to determine whether a section 89(1) ground exists, nor does it tether the vote
to any criteria directed at that question. The constitutionality of a rule is not assessed
by reference to outcomes that may appear acceptable in particular cases, but by what it
by reference to outcomes that may appear acceptable in particular cases, but by what it
authorises in all cases. Outcome (d) illustrates the point: it permits a decision not to
361 See the second judgment at [280].
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proceed in the absence of discernible or constitutionally relevant grounds. In this way,
rule 129I invites a decision that is unguided and indeterminate.
[363] The second reason is that the logical consequence of the second judgment’s
approach is untenable. If the National Assembly may, at its discretion, interpose a vote
at the stage contemplated by rule 129I, there is no principled basis upon which such a
vote could not be inserted at an even earlier stage of the process. On that reasoning, the
National Assembly could, by majority decision, decline to refer an otherwise valid
impeachment motion to the Panel altogether, thereby preventing even the preliminary
evidentiary assessment from taking place. The effect would be to permit the National
Assembly to determine not whether a section 89 ground exists, but whether the
constitutionally mandated process for determining that question should be triggered at
all. This would render the carefully structured mechanism envisaged in EFF II illusory
and reduce the obligation to design an effective impeachment process to a matter of
legislative discretion capable of being neutralised at will. Such an outcome cannot be
reconciled with the Constitution and is directly in contrast with EFF II.
[364] The National Assembly must exercise its powers through clear rules, not by
ad hoc standards. Properly understood, EFF II affirms that the National Assembly
determines the form of the preliminary inquiry, but it must do so by designing a
constitutionally compliant rule -based process that directs its own decision -making
toward the constitutional question.
“Double standard” created by this judgment’s reasoning
[365] The other principal criticism advanced in the second judgment is that this
judgment adopts an impermissible double standard. It considers that there is no
principled reason for this judgment to distinguish between (a) the lawful termination of
principled reason for this judgment to distinguish between (a) the lawful termination of
an impeachment process after the Panel finds that no sufficient evidence exists; and (b)
the constitutionally impermissible termination of the process notwithstanding a finding
by the Panel that sufficient evidence exists. On that basis, it is fur ther contended that
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the flaw lies not in the rule itself, but only in how the National Assembly exercises its
power in a given case.362
[366] With respect, that criticism rests on a false equivalence. It is premised on the
absence of evidence and the presence of sufficient evidence being constitutionally
interchangeable positions. They are not. They represent fundamentally different states
of affairs, which call for fundamentally different responses.
[367] The line of reasoning in this judgment is that the exercise of the National
Assembly’s power under section 89 must be tethered to, and proportionate with, the
factual material available to it . The mechanism adopted must enable the National
Assembly to make a constitutionally compliant determination and the thoroughness of
the process undertaken must correspond to the evidentia ry position disclosed. This
explains why it is appropriate, and in fact necessary, to accord disparate treatment to
different recommendations of the Panel.
[368] Where the Panel concludes t hat there is not sufficient evidence, the position is
straightforward. The material before the National Assembly discloses no factual basis
upon which any of the grounds in section 89(1) could be established. The National
Assembly is therefore able to bring the matter to finality by voting, on the basis of the
Report, that no ground has been established. In such a circumstance, the National
Assembly is entitled to find that no ground for removal exists since its designated sifting
mechanism has found that even the lowest threshold of veracity has not been met. This
does not detract, however, from the National Assembly’s ability to require further
investigation of the allegation if it so desires, and in the form it desires. The National
Assembly may even, by virtue of the power afforded to it as ultimate decision -maker,
resolve to continue with the process, notwithstanding the Panel’s conclusion that no
resolve to continue with the process, notwithstanding the Panel’s conclusion that no
sufficient evidence exists. Put differently, it cannot be bound by the Panel’s findings
and conclusion.
362 See the second judgment at [287].
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[369] This does not involve the avoidance of the constitutional function. On the
contrary, it constitutes the National Assembly’s execution of its constitutional duties in
a form proportionate to the evidentiary position. Where the Panel finds that there is no
sufficient evidence, unlike the facts of the present matter, the National Assembly is not
deciding in the air. It is making a determination, grounded in the confirmed absence of
substantiating facts, that the threshold for impeachment has not been met.
[370] The position is altogether different where the Panel finds that there is sufficient
evidence. In that event, the material before the National Assembly does not resolve the
constitutional question. It does not establish that a ground exists, nor does it establish
that it does not. It indicates only that there is a sufficient basis to warrant further inquiry.
[371] In such circumstances, the constitutional question – whether one of the grounds
in section 89(1) exists – cannot be answered on the available record. A vote by the
National Assembly at that stage, whether to affirm or reject the existence of a ground,
would not be tethered to a sufficiently developed factual foundation. It would amount,
in substance, to the exercise of unstructured or raw power.
[372] It is for this reason that a further investigation by the Impeachment Committee
is constitutionally required in that instance. The function of that Committee is to test
the veracity of the allegations, to develop the factual record and to place before the
National Assembly the material necessary to enable it to make the determination that
section 89 requires.
[373] Properly understood, therefore, there is no double standard. There is a principled
distinction between—
(a) a case in which the available material conclusively indicates that no
ground exists; and
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(b) a case in which the available material indicates that a ground may exist ,
but requires further investigation before any section 89 determination can
be made.
[374] Rule 129I fails to respect this di stinction. It permits the National Assembly to
terminate the process in both situations in the same manner, including in circumstances
where the evidentiary threshold has been met but the factual record remains incomplete.
In doing so, it authorises the National Assembly to avoid making the determination that
the Constitution requires it to make on a properly informed basis.
[375] The defect, therefore, lies not in the fact that some processes may end without a
full inquiry. It lies in the rule’s capacity to permit the premature termination of a process
in circumstances where further investigation is necessary to enable the National
Assembly to discharge its constitutional function. That is constitutionally untenable
and contrary to this Court’s holding in EFF II.
[376] The Constitution does not demand a uniform process in all cases. It demands an
effective mechanism , one in which the degree of investigation and deliberation is
proportionate to the evidentiary position and sufficient to enable the National Assembly
to make an informed determination. And the National Assembly has a discretion on
how to achieve that outcome, fettered only by the demands in the Constitution, as
explicated by this Court in EFF II. Rule 129I does not meet that standard.
[377] This judgment’s approach also accords with the demands of transparency: the
degree of public ventilation must be proportionate to the veracity of the claim. Where
the material discloses no credible basis for the allegation, there is correspondingly little
public interest in an extended inquiry and the process may properly be brought to
finality without further factual investigation. In this way, the procedure performs a
legitimate sifting function while ensuring that the National Assembly remains the
legitimate sifting function while ensuring that the National Assembly remains the
ultimate decision-maker and its constitutional role is preserved, albeit exercised in a
form proportionate to the evidentiary position.
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Reliance on Van Rooyen and Bernstein
[378] The second judgment’s reliance on Van Rooyen and Bernstein is misplaced.363
They are distin guishable on the law. Those cases concern powers that are
constitutionally sound in their design but may be abused in particular instances, with
the remedy lying in the review of their exercise. This case is different. Rule 129I does
not merely create t he possibility of abuse; it permits, as part of its ordinary operation,
the termination of an impeachment process after it has been established that there is
sufficient evidence but before the National Assembly performs the constitutional task
assigned to it under section 89. In that sense, the failure to determine whether a ground
for removal exists is not a mere aberration but is an outcome of the rule itself. The
defect therefore lies not in how the power might be exercised in a given case but in the
structure of the rule, which enables the avoidance of a constitutional obligation , thus
rendering it constitutionally deficient.
Conclusion
[379] Rule 129I does not pass constitutional muster because—
(a) it interposes an antecedent step of referral of the Report to the plenary
National Assembly for consideration of whether to proceed with the
removal process, and the section 89(1) inquiry only moves forward when
the National Assembly so resolves. This subverts the two-stage structure
identified in EFF II, frustrates the accountability purpose of section 89
and defeats the very constitutional mechanism it purports to give effect
to, namely, the ability of the National Assembly to remove the President
where the constitutional prerequisites exist; and
(b) the deci sion taken by the National Assembly in this irregular,
constitutionally non-compliant antecedent stage occurs without any
factual foundation whatsoever and lacks transparency.
363 See the second judgment at [292] to [293].
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[380] I therefore agree with the first judgment that the rule is unconstitutional, bu t for
the reasons enunciated here, and not those contained in the first judgment.
Remedy
[381] Accordingly, this Court’s order setting aside the NA vote is justified because the
vote was taken pursuant to a rule that misdirected the National Assembly as to the
constitutional task it was required to perform and subsequently prevented the National
Assembly from undertaking the constitutional determination that section 89 demands.
Therefore, the vote resulting from the constitutionally invalid rule lacks a lawful
foundation.
[382] As stated, I agree with the second judgment that, for the reasons advanced there,
the challenge to the vote does not engage this Court’s exclusive jurisdiction . Nothing
more need be said about it, except this. Having reached this result regarding the
unconstitutionality of rule 129I, even if this Court had exclusive jurisdiction regarding
the vote challenge it would not have been necessary, and would indeed be imprudent,
to consider that challenge. This is so because, once the conclusion is reached that the
impugned rule is constitutionally invalid, the vote becomes academic. In criminal
procedure parlance, the vote is fruit of a poisoned tree (the rule) and it must perish with
the rule.
[383] This conclusion regarding the challenge to the NA vote finds support in this
Court’s judgment in Genesis.364 In that case, the Registrar of Medical Schemes issued
certain circulars advising compliance with the High Court’s judgment in Omnihealth.365
On appeal, this Court overruled Omnihealth. The central issue in Genesis was the
characterisation of Members’ contr ibutions to their medical aid scheme. Put more
directly, does a medical scheme hold any part of its Members’ contributions in trust for
364 Genesis above n 197.
364 Genesis above n 197.
365 The High Court in Genesis held that Omnihealth was wrongly decided: Genesis Medical Scheme v Registrar
of Medical Schemes 2015 (4) SA 91 (WCC). The Supreme Court of Appeal split 3 -2 in upholding the appeal:
Registrar of Medical Schemes v Genesis Medical Scheme [2016] ZASCA 75; 2016 (6) SA 472 (SCA). By that
narrow margin, the Court thus affirmed Omnihealth.
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them as trustees? That question was directly related, on a practical level, to the status
of Members’ contributions in the event of their medical aid’s insolvency.
[384] In narrating the background and issues in Genesis, the majority in this Court
noted:
“The correctness of Omnihealth is thus key: . . . if it is wrong, the Registrar’s formal
statutory rejection of Genesis’s statements must tumble, together with the circulars that
embody and explain the Registrar’s approach.”366
[385] This Court, in disagreeing with the minority’s view regarding the fate of the
circulars, held:
“[T]he circulars themselves derive their sole force and impact from Omnihealth. When
Omnihealth tumbles, as it must, they must tumble too. It would be a far -going
misconstruction not only of the statute, but of the parties’ dispute, to require Genesis
to have sought, separately, to set the circulars aside – when what it did do was to
challenge the Registrar’s decision that sought to enforce the circulars. When
Omnihealth tumbles, the Registrar’s decision tumbles, and with it the circulars, all in
one.”367
[386] The same applies here. The finding that the vote is invalid has as its jurisdictional
basis the invalidation of rule 129I – to declare that the vote is invalid is simply to state
the consequence of the finding that the rule is invalid. The one ipso jure (automatically,
by operation of law) follows upon the other.
[387] I agree with this Court’s order . Paragraph 3 of th e order makes allowance for
both scenarios in the Panel’s report – where the Panel concludes that sufficient evidence
exists, as contemplated in rule 129G, and where it finds that there is no sufficient
366 Genesis above n 197 at para 11.
367 Id at para 62. See also the judgment of Zondo J at para 174.
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evidence. The further courses of action in the event of either scenario, proposed in the
order, accord with my reasoning on rule 129I.
THE COURT:
[388] Regard being had to the first, second and third judgments, the following order is
made:
1. This Court has exclusive jurisdiction to hear the application with respect
to the challenge to rule 129I of the Ninth Edition of the Rules of the
National Assembly (NA Rules).
2. It is declared that rule 129I is inconsistent with the Constitution, invalid
and set aside.
3. Pending any amendment, rule 129I shall read as follows (with the words
struck out being severed and the underlined words being inserted into that
rule):
“Rule 129I Consideration and referral of panel report
(1) Once the panel has reported the Speaker must schedule the report
for consideration by the Assembly, with due urgency, given the
programme of the Assembly inform the Assembly of the report.
(2) The President must be informed of the scheduling and any decision
on provided with a copy of the report forthwith.
(3) In the event the Assembly panel resolves concludes that a
Section 89(1) enquiry be proceeded with sufficient evidence exists
as contemplated in Rule 129G, the matter must be referred to the
Impeachment Committee established by this rule (or by the
National Assembly Rules) for that purpose.
(4) In the event the panel concludes that sufficient evidence does not
exist as contemplated in Rule 129G, the Speaker must schedule the
report for consideration by the Assembly; and in the event the
Assembly nonetheless resolves that a Section 89(1) enquiry be
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149
proceeded with, the matter must be referred to the Impeachment
Committee established by this rule (or by the National Assembly
Rules) for that purpose.”
4. The severance and reading -in in paragraph 3 of this order shall apply
subject to any amendment by the National Assembly.
5. Pending any amendment of the NA Rules, to the extent that any of the
other N A Rules are, by implication, affected by the reading -in in
paragraph 3 of this order, those rules shall be read consistently with
paragraph 3 of this order mutatis mutandis.
6. It is declared that the vote of the National Assembly taken on
13 December 2022, declining to refer the Report of the Independent Panel
to an Impeachment Committee as envisaged in the NA Rules is
inconsistent with the Constitution, invalid and set aside.
7. The Report of the Independent Panel is referred to the Impeachment
Committee established in terms of the NA Rules.
8. The first to fourth respondents are ordered to pay the costs of the first
applicant, including costs of two counsel where applicable.
For the Applicant:
For the Second Applicant:
For the First and Second Respondents:
For the Third Respondent:
For the Fourth Respondent:
K Premhid, M Ka-Siboto, B Casey,
M Zikalala and P Vabaza instructed by
England Slabbert Attorneys
Incorporated
A Katz SC, M Mhambi and
K Perumalsamy instructed by
Ashersons Attorneys
A Breitenbach SC and A Toefy
instructed by the Office of the State
Attorney, Cape Town
G Budlender SC and N Luthuli
instructed by Harris Nupen Molebatsi
Incorporated
T Ngcukaitobi SC , L Zikalala,
N Chesi-Buthelezi and N Qwabe
instructed by Ka-Mbonane Cooper