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[2017] ZACC 47
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Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 76/17
In the matter between:
ECONOMIC FREEDOM
FIGHTERS
First Applicant
UNITED DEMOCRATIC
MOVEMENT
Second Applicant
CONGRESS OF THE
PEOPLE
Third Applicant
DEMOCRATIC ALLIANCE
Intervening Party
and
SPEAKER OF THE NATIONAL
ASSEMBLY
First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA
ZUMA
Second Respondent
and
CORRUPTION WATCH (RF)
NPC
Amicus Curiae
Neutral citation:
Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another
[2017] ZACC 47
Coram:
Mogoeng CJ, Zondo DCJ,
Cameron J, Froneman J, Jafta J,
Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J,
Zondi AJ
Judgments:
Zondo DCJ (dissenting): [1] to [128]
Jafta J (majority): [129] to [222]
Mogoeng CJ (dissenting): [223] to [278]
Froneman J (concurring): [279] to [286]
Heard on:
5 September 2017
Decided on:
29 December 2017
Summary:
ad hoc Committee — mechanisms and processes — Public
Protector’s remedial action — section 89 process
exclusive jurisdiction — rules of
the National Assembly — removal of a President —
accountability of a President
ORDER
In the result the following order is
made:
1.
This Court has exclusive jurisdiction to hear the application.
2.
The 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.
3.
The National Assembly must comply with section 237 of the
Constitution and make
rules referred to in paragraph 2 without delay.
4.
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.
5.
The National Assembly must comply with section 237 of the
Constitution and fulfil
the obligation referred to in paragraph 4,
without delay.
6.
The National Assembly must pay costs of the application, including
the costs
of two counsel where applicable.
JUDGMENT
ZONDO DCJ (Mogoeng
CJ, Madlanga J, Zondi AJ concurring):
Introduction
[1]
In this matter this Court is, once again, called upon to
consider and pronounce upon complaints by some of the political
parties
represented in the National Assembly that the National
Assembly has failed to fulfil some of its constitutional
obligations.
This case is about Parliamentary mechanisms for
holding the President of the Republic accountable and the
constitutional obligation
of the National Assembly to hold him to
account.  It is not about holding any President of the Republic
accountable as such
but about the National Assembly holding the
current President of the Republic, President Jacob Zuma, accountable
for his failure
to implement the Public Protector’s
remedial action contained in the Public Protector’s report
dated 19 March 2014.
[2]
The first applicant is the Economic Freedom Fighters (EFF).
The second applicant is the United Democratic Movement (UDM).

The third applicant is the Congress of the People (COPE).  All
these applicants are registered political parties who are represented

in the National Assembly.  They are all opposition parties.
Closer to the date of hearing the Democratic Alliance (DA)
brought an
application for leave to be joined as an intervening party in the
proceedings.  The DA made common cause with the
EFF, UDM and
COPE and said that it sought the same relief as these applicants.
[1]
Corruption Watch, an organisation that is dedicated to fighting
corruption, was admitted as amicus curiae (friend of the
court).
It made both written and oral submissions in this matter.  We
are grateful for its assistance.
[3]
The applicants’ complaint
s
are against the National Assembly.  They have cited the Speaker
of the National Assembly in her representative capacity as
a
representative of the National Assembly as the first respondent and
President JG Zuma as the second respondent.
All the
orders that the applicants seek are sought against the Speaker in her
representative capacity.  No order is sought
against the
President.  He is only cited as an interested party.
Indeed, the President has not taken part in these proceedings.

Before considering the applicants’ case, it is necessary to set
out the background to this application.
Background
[4]
The upgrades effected to the private residence of President
Jacob Zuma, about which much is already public knowledge by now,
constitute
the background to this matter.  That background
includes the fact that on 19 March 2014 the Public Protector released
a report
on her investigation into the upgrades to the President’s
private residence.  That report ended with the Public
Protector’s
remedial action against the President.  Part
of the remedial action against the President was that the President
had to “pay
a reasonable percentage of the cost of the
non-security measures effected in his private residence as determined
with the assistance
of the National Treasury and reprimand the
Ministers responsible for the ‘appalling’ manner in which
the Nkandla project
was handled and funds were abused.”
For a long time after the Public Protector had taken remedial
action against
the President, the President did not implement the
Public Protector’s remedial action.  It is not necessary
in this
judgment to give details of what happened after the Public
Protector had released her report because that is covered
sufficiently
in the judgment of this Court in
EFF 1
.
[2]
The applicants’ case focuses on the period after the delivery
of that judgment.  The relevant background to this
matter falls
under that period.
[5]
On 31 March 2016 this Court handed down its judgment in
EFF
1
.  Some of its conclusions about the President were that—
(a)
the President neither paid for the non-security features of the
upgrades nor reprimanded
the relevant Ministers; and
(b)
in neither paying for the non-security installations nor reprimanding
the affected Ministers,
the President second guessed the Public
Protector’s remedial action in a manner that is not sanctioned
by the rule of
law; and
(c)
the President failed to uphold, defend and respect the Constitution
as the supreme law of
the land.  The Court said that “this
failure was manifest from the substantial disregard for the remedial
action taken
against him by the Public Protector in terms of her
constitutional powers”; and
(d)
the President’s failure to comply with the Public Protector’s
remedial action was inconsistent with the Constitution
and invalid.
[3]
[6]
On 1 April 2016, the day after this Court had handed down its
judgment, the President addressed the nation on the judgment.

He welcomed the judgment unreservedly.  He then said that he
respected the role of Parliament to hold the Executive to account
“as
true representatives of our people”.  He also said that he
respected the judgment and would abide by it.
He pointed out
that he had “consistently stated that [he] would pay an amount
towards the Nkandla non-security upgrades once
this had been
determined by the correct authority”.  He asserted that he
had “never knowingly or deliberately
set out to violate the
Constitution, which is the supreme law of the Republic”.
[4]
[7]
The President stated that he “did not act dishonestly or
with any personal knowledge of the irregularities by the Department

of Public Works with regards to the Nkandla project”.  He
said that his intention “was not in pursuit of corrupt
ends or
to use state resources to unduly benefit [himself] and [his]
family”.  He also asserted that there was no deliberate

effort or intention to subvert the Constitution on his part.  He
urged all parties to respect the judgment and abide by it.
[8]
On 5 April 2016 the Leader of the Opposition
[5]
moved in the National Assembly a motion for the removal from
office of the President in terms of section 89 of the Constitution.

The basis advanced by the DA in support of its motion was that the
President had committed a serious violation of the Constitution
in
failing to implement the Public Protector’s remedial action.
The commission of a serious violation of the Constitution
or
the law is one of the grounds listed in section 89 of the
Constitution for the removal of a President.
[9]
Paragraph 2(2) of that motion required “that the
National Assembly acknowledges that President Zuma thus seriously
violated
the Constitution when he undermined the Public Protector’s
findings when he failed to implement the Public Protector’s

remedial action.”  This subparagraph of that notice of
motion required the National Assembly to conclude that the President

had seriously violated the Constitution in failing to implement the
Public Protector’s remedial action.  After this
conclusion
in paragraph 2(2), paragraph 2(4) required that the National Assembly
“condemns the actions of the President and
resolves to remove
[him] from office in terms of section 89(1) (a) of the
Constitution”.  This meant that the motion
required the
National Assembly to first conclude that the President had seriously
violated the Constitution, then condemn his actions
and, thereafter,
resolve to remove him from office.  The EFF, UDM, and COPE
supported that motion and actively participated
in the debate in the
National Assembly.  That motion was deliberated and voted upon
but it was defeated.
[10]
The DA’s motion did not include a resolution that the
National Assembly establish an ad hoc Committee to conduct an
investigation
or inquiry in terms of section 89 to establish whether
the President had committed a serious violation of the Constitution.

In 2014 the Leader of the Opposition – who was the leader of
the DA in the National Assembly – successfully moved a
motion
in the National Assembly for the establishment of an ad hoc Committee
to determine whether the President had committed a
serious violation
of the Constitution as contemplated in section 89 of the Constitution
in regard to his role in the Nkandla project.
That ad hoc
Committee was established but had not completed its task when
Parliament was dissolved ahead of the 2014 general election.
In
2015 the current Leader of the Opposition moved a motion in the
National Assembly for the establishment of an ad hoc Committee
to
determine whether the President had committed a serious violation of
the Constitution as contemplated in section 89 thereof
in regard to
the departure of President Omar Al Bashir from South
Africa despite the fact that a court had issued
an order that he
should not be allowed to leave the country.
[11]
In the months that followed the motion for the removal of the
President on 5 April 2016, there were Question and Answer

sessions in the National Assembly in which the President was asked
questions concerning his failure to implement the Public Protector’s

remedial action and he answered those questions.
[12]
On 10 November 2016 the Leader of the Opposition moved a
motion of no confidence in the President in terms of section 102 of
the
Constitution read with the relevant rules of the National
Assembly.
[6]
That motion related to the President’s failure to implement the
Public Protector’s remedial action.  The
motion was
deliberated and voted upon but was defeated because it was not
supported by the majority of the members of the National
Assembly.
The EFF, UDM and COPE supported that motion and actively participated
in the debate.
[13]
The Acting Speaker of the National Assembly, Mr Lechesa
Tsenoli, has in his supplementary affidavit drawn attention to the
fact
that on 8 August 2017 another motion of no confidence in the
President was moved, deliberated and voted upon in the National
Assembly.
That vote was conducted by secret ballot.  The
Acting Speaker said that this was after the Speaker had ruled that
the vote
had to be conducted by secret ballot following upon this
Court’s judgment in
UDM
.
[7]
That motion also related to, among others, the President’s
failure to implement the Public Protector’s remedial
action.
The Acting Speaker said that that motion of no confidence was also
defeated.
Exclusive jurisdiction
[14]
The applicants brought this application on the basis that this
Court has exclusive jurisdiction in terms of section 167(4)(e) of
the
Constitution.
[8]
For this Court to have exclusive jurisdiction, a matter must be
one in which Parliament or the President is said to have
“failed
to fulfil a constitutional obligation”.  In a number of
cases this Court has dealt with the question of
when this Court can
be said to have exclusive jurisdiction.  These include
EFF 1
.
The applicants’ case is that the National Assembly
has a constitutional obligation to hold the President accountable
for
his failure to implement the Public Protector’s report of 19
March 2014 and it has failed to fulfil this obligation.
The
applicants also initially said that the National Assembly has a
constitutional obligation to put in place mechanisms
and processes
for holding the President accountable in regard to his failure to
implement the Public Protector’s report
but it has also
failed to fulfil this obligation.  The applicants later changed
their case in regard to this aspect as will
be shown later.  It
is the alleged failure by the National Assembly to fulfil these
constitutional obligations that the applicants
contend gives this
Court exclusive jurisdiction.
[15]
In
EFF 1
this Court discussed its exclusive
jurisdiction in regard to alleged failures by both the President and
the National Assembly to
fulfil their respective constitutional
obligations.  The constitutional obligation that the National
Assembly was said to
have failed to fulfil was the obligation to hold
the President accountable.  In this case that is one of the
obligations upon
which the applicants rely.
[16]
In
EFF 1
this Court said that one of the indications
that a constitutional obligation that the President or the National
Assembly failed
to fulfil is one contemplated in section 167(4)(e) of
the Constitution is that the obligation must be specifically-imposed
on the
President or the National Assembly, as the case may be.
[9]
The obligation on the National Assembly to hold the President
accountable is a specifically-imposed obligation.
[10]
As was also said by this Court in
EFF 1
, it is a primary and
undefined obligation imposed on the National Assembly.
[11]
This Court pointed out in
EFF 1
that, to determine whether the
National Assembly has fulfilled or breached its obligations, will
entail a resolution of very crucial
political issues.  Indeed,
said this Court in that case, it is an exercise that may trench on
sensitive areas of the separation
of powers.  As this Court said
in
EFF 1
, this exercise—
“could at
times border on second-guessing the National Assembly’s
constitutional power or discretion.  This is
a powerful
indication that this Court is entitled to exercise its exclusive
jurisdiction in this matter.  But that is not
all.”
[12]
[17]
The obligation on the National Assembly to hold the President
accountable after the Public Protector’s Report was held in
EFF
1
to be exclusive to the National Assembly.  It was not
shared.
[13]
That applies to this case as well.  The constitutional
obligation involved in this case is the same constitutional
obligation that was involved in
EFF 1
on the part of the
National Assembly.  In the light of this and what this Court
said in
EFF 1
in regard to the constitutional obligation that
the National Assembly had allegedly failed to fulfil in that case,
this Court has
exclusive jurisdiction in the present case as well.
In the light of this conclusion, the issue of direct access falls
away.
Merits
[18]
To understand what the applicants’ case is, it is
convenient to start with the relief the applicants seek in their
notice
of motion.  Apart from orders declaring that this Court
has exclusive jurisdiction, an order that the first respondent report

to this Court on certain steps taken by her and for costs, the
applicants asked for the following material orders:
“2.
Declaring that the first respondent has failed to put all appropriate
mechanisms and
processes in place to hold the second respondent
(‘the President’) accountable for violating the
Constitution
in failing to implement the report of the Public
Protector dated 19 March 2014.
3.
Declaring that the first respondent has failed in her duty to apply
her mind
and/or to scrutinise the violation of the Constitution by
the President in the course of his failure to implement the report of

the Public Protector dated 19 March 2014.
4.
Declaring that the first respondent’s failures, set out in
paragraphs 2
and 3 above, infringe sections 42(3), 48 and/or 55(2)
read with sections 1(c) and 1(d) of the Constitution.
5.
Directing the first respondent to put the requisite processes and
mechanisms
in place to hold the President accountable for his conduct
(and failures) arising from, and incidental to, the report of the
Public
Protector dated 19 March 2014, including processes
and mechanisms to enquire into and determine whether and to what
extent
the President’s violations of the Constitution and/or
other conduct satisfied the requirements of section 89(1) of the
Constitution.
6.
Directing the first respondent to convene a committee of Parliament
and/or any
other appropriate independent mechanism, to conduct an
investigation into the conduct of the President and, in particular,
whether,
by any act and/or omission, the President has made himself
guilty of an offence or inability which would warrant the exercise of

the powers of Parliament, in terms of section 89(1) of the
Constitution.”
[19]
Although in form the applicants ask for certain orders to be
made against the Speaker, in effect they are asking for those orders

to be made against the National Assembly.  This emerges
from the basis upon which the applicants cited the Speaker in
these
proceedings.
[20]
The applicants’ case is based on their founding
affidavit deposed to by the leader of the EFF, Mr Julius Sello
Malema.
The Presidents of the UDM and COPE, Mr Bantu Holomisa
and Mr Patrick Mosiuoa Lekota, respectively, have signed confirmatory
affidavits
in which, on behalf of their political parties, they make
common cause with the EFF and confirm Mr Malema’s affidavit.

In that affidavit the deponent explained the basis upon which the
applicants cited the Speaker.  He said:
“The first
respondent is the Speaker of the National Assembly, who is cited as
nominal respondent on behalf of the National
Assembly in terms of
section 23 of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004,
read with
section 2
of the
State Liability Act 20 of 1957
.”
[21]
What logically flows from the basis upon which the Speaker is
cited is that each one of the orders that the applicants ask this
Court to make against her can only be made if this Court concludes
that there is an obligation attached to the National Assembly

which it has failed to fulfil.  In other words, to get the
orders that the applicants seek against the Speaker, it will not
help
them to point to an obligation which attaches to the Speaker but does
not attach to the National Assembly.
[22]
To point to an obligation attaching to the Speaker but not to
the National Assembly would only have helped the applicants if

they had cited her simply as the Speaker in respect of obligations
that attach to the Speaker as such.  An example of this
latter
scenario is
De Lille v Speaker of the National Assembly
[14]
and
Speaker of National Assembly v De Lille MP
.
[15]
Therefore, the foundation for any orders that we may make in this
matter has to be obligations we conclude the National Assembly

has which we say it has failed to fulfil.  This is, of course,
in line with the fact that the sections of the Constitution
upon
which the applicants’ case is based are sections that relate to
obligations of the National Assembly and not obligations
of the
Speaker.  These are sections 42(3), 55, 89, 102 and others.
[23]
It is appropriate to go back to the orders that the applicants
ask this Court to make in effect against the National Assembly.

If one analyses those orders, one will see that the applicants’
ultimate objective is for this Court to make the orders embodied
in
prayers 2, 3, 4, 5 and 6 of the notice of motion.
[24]
Prayer 2 in the notice of motion is for a declaratory order
that, in effect, the National Assembly “has failed to put all
appropriate mechanisms and processes in place to hold [President
Jacob Zuma] accountable for violating the Constitution [by] failing

to implement the report of the Public Protector dated 19 March
2014”.  This Court can only make this order if it

concludes that the National Assembly failed to put in place
mechanisms and processes for holding the President accountable
for
failing to implement the Public Protector’s report and the
National Assembly acted in breach of its obligations
in so
failing.  If this Court is unable to reach this conclusion, it
cannot grant prayer 2.
[25]
Prayer 3 is for a declaratory order that in effect the
National Assembly has failed to “scrutinise the violation of
the Constitution
by the President” in failing “to
implement the report of the Public Protector dated 19 March
2014”.
For the Court to grant this prayer, it would have
to first conclude that the National Assembly failed to scrutinise the
violation
of the Constitution by the President.  A conclusion
that the National Assembly has failed to scrutinise a violation of
the
Constitution by the President would mean that it has failed to
hold the President accountable for his violation of the
Constitution.
The President’s violation of the
Constitution was his failure to implement the Public Protector’s
report.  If
this Court cannot reach this conclusion, prayer 3
cannot be granted.
[26]
Prayer 4 is for a declaratory order that the National
Assembly’s alleged failures referred to in prayers 2 and 3
constitute
an infringement of sections 42(3) and/or 55(2)
[16]
read with section 1(c) and (d) of the Constitution.  Nothing
more needs to be said about prayer 4.  Prayer 5 is for an
order,
in effect that the National Assembly “put the requisite
processes and mechanisms in place
to hold the President
accountable for his conduct (and failures) arising from, and
incidental to, the report of the Public Protector
dated 19 March
2014
, including processes and mechanisms to enquire into and
determine whether and to what extent the President’s violations
of
the Constitution and/or other conduct satisfied the requirements
of section 89(1) of the Constitution”.  Prayer 5 is
linked
to, and dependent upon, prayer 2.  If prayer 2 is not granted,
prayer 5 can also not be granted.  This is so because
prayer 5
can only be granted if, to say the least, the failure on the part of
the National Assembly referred to in prayer 2 has
been established.
[27]
Prayer 6 seeks an order that the National Assembly “convene
a committee of Parliament and/or any other appropriate independent

mechanism, to conduct an investigation into the conduct of the
President and, in particular, whether, by any act or omission, the

President had made himself guilty of an offence or inability which
would warrant the exercise of the powers of Parliament, in terms
of
section 89(1) of the Constitution”.  So, both prayers 5
and 6 are connected with, or, based on, section 89 of
the
Constitution.  Prayer 6 can also not be granted if the Court
were to find that there has been no failure on the part of
the
National Assembly to put in place mechanisms and processes which the
applicants could have used to have a Committee established
by the
National Assembly to conduct an investigation or inquiry relating to
a section 89 procedure.  So, prayer 6 can also
not be granted if
prayer 2 is not granted.
[28]
In the light of the above, the fundamental questions which
this matter raises are—
(a)
whether the National Assembly has failed to put all appropriate
mechanisms and processes in place to hold the President accountable

for violating the Constitution by failing to implement the report of
the Public Protector dated 19 March 2014;
(b)
whether the National Assembly has failed in its duty to scrutinise
the violations of the Constitution by the President in the course
of
his failure to implement the report of the Public Protector;
(c)
whether, if this Court determines the issue in paragraph (a) in the
applicants’ favour, this Court should make the order
in prayer
5; and
(d)
whether, if this Court determines the issue in paragraph (b) in the
applicants’ favour, this Court should make the order
in prayer
6.
Did the National Assembly fail to put
in place mechanisms and processes to hold the President accountable
for failing to implement
the Public Protector’s report?
[29]
The applicants originally contended
that the National Assembly had a constitutional obligation to put in
place mechanisms and processes
to hold the Executive, including the
President, to account but had failed to do so.  However, later
on the applicants abandoned
this part of their case.  Although
the applicants abandoned this part of their case, I deal with it
because the DA continues
to maintain that the National Assembly
failed to put in place mechanisms and processes to hold the President
accountable for failing
to implement the Public Protector’s
remedial action.  In his judgment (second judgment), which I
have had the opportunity
of reading, Jafta J also deals with this
aspect.  That the National Assembly has the obligation to which
the applicants refer
is beyond dispute.  The obligation arises
from section 55(2) of the Constitution.  That provision reads:
“
The
National Assembly must 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
(ii)
any organ of state.”
[30]
Section 57(1)(a) and (b) and (2)(a)
and (b) of the Constitution provides in relevant parts:
“
(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 Assembly and its
committees of minority
parties represented in the Assembly, in a
manner consistent with democracy”.
[31]
It needs to be emphasised that the
question is specific, not general.  The question relates
specifically to whether the National
Assembly did put in place
mechanisms to hold President Jacob Zuma accountable for failing to
implement the Public Protector’s
remedial action.
The
issue under discussion is about prayer 2 in the notice of motion but
the conclusion in this regard may affect prayers 5 and
6 of the
notice of motion.
[32]
In paragraph 66 of the applicants’ founding
affidavit the deponent says:
“[T]he EFF
does not ask this Court to direct the National
Assembly to put in place particular accountability mechanisms and/or
how to go about
putting them in place.  But this Court is
entitled – and, with respect, constitutionally obliged –
to ask whether
the National Assembly has put in place any
accountability mechanisms at all.  The answer is ‘no’.
Only thereafter
may the Court, after hearing all sides, propose
appropriate relief, if any”.
[33]
The deponent to the applicants’ founding affidavit
emphasised this part of the applicants’ case when he said:
“There has
been no action by the Speaker and the National Assembly to hold the
President accountable.
No accountability mechanisms have
been put in place
.”
[17]
He went on to say:
“Section
55(2) requires the National Assembly to provide mechanisms for
accountability and oversight.  Despite having
a host of
potential mechanisms available,
the Speaker and the National
Assembly have failed to provide any
.”
[18]
[34]
From this there can be no doubt that, initially, part of the
applicants’ case was that the National Assembly had failed to

put in place accountability mechanisms to hold the President
accountable for failing to implement the Public Protector’s

remedial action.  The Speaker’s understanding was also
that the applicants’ case included this allegation.
That
is why she said
in paragraph 4
of her answering affidavit:
“In essence,
the Applicant claims that I, and by extension, the National Assembly
(“the NA”) have failed to put
into place mechanisms to
hold the President accountable for not complying with the Public
Protector’s remedial action”.
In her answering affidavit the Speaker
dealt head on with the allegation that the National Assembly had
failed to put in place accountability
mechanisms and processes to
hold the President accountable for failing to implement the
Public Protector’s remedial
action.  The Speaker
said:
“I shall
demonstrate in what follows that the allegations of the Applicant are
devoid of the truth and that the whole case
brought by the Applicant
has no merit.  I shall also point out that the Applicant has
rushed to court without first exhausting
its internal remedies.  I
shall also draw attention to the fact that the mechanisms that the
Applicant asks this Court to
order are available to the Applicant . .
. and have been employed by the NA and members of the NA to hold the
executive, including
the President, accountable to the NA.”
[19]
[35]
From the answering affidavit of the Speaker and the
supplementary affidavit of the Acting Speaker what emerges is that
the rules
of the National Assembly make provision for—
(a)
Question and Answer sessions in the National Assembly where members
of the Executive including the President are asked questions
which
they have to answer.
(b)
any member of the National Assembly to move a motion of no confidence
in the Cabinet excluding the President or in the President
and for
members of the National Assembly to deliberate and vote upon in terms
of section 102 of the Constitution.
(c)
the establishment of an ad hoc Committee which could be used for a
section 89 procedure even though it is not tailor-made for a
section
89 procedure.
[36]
In
UDM
this Court mentioned a number of accountability
and oversight mechanisms which are available for use by the National
Assembly to
hold the Executive, including the President,
accountable.
[20]
It said that we could take judicial notice of them.  Some of
those it mentioned were Question and Answer sessions where
members of
the National Assembly ask members of the Executive, including the
President, questions which they have to answer, motions
of no
confidence under section 102 of the Constitution and motions for the
removal of the President in terms of section 89 of the
Constitution.
[37]
From what this Court said in
UDM
as reflected in the
paragraphs quoted above, it is clear that, even if the only
oversight mechanism that could have been used
to hold the President
accountable for failing to implement the Public Protector’s
report was the motion of no confidence
in the President that would
have been enough.  This is because, as Mogoeng CJ said in
UDM
,
the motion of no confidence in the President is the most effective
oversight and accountability mechanism.
[21]
In
Mazibuko
[22]
this Court also made this point about the mechanism of a vote of no
confidence.  Through Moseneke DCJ this Court said: “[The

right to initiate and move a motion of no confidence in terms of
section 102(2)] is perhaps the most important mechanism that may
be
employed by [P]arliament to hold the [E]xecutive to account, and to
interrogate executive performance.”
[23]
The rules of the National Assembly do provide for a motion of
no confidence in a President.
[38]
Rule 124(1) of the Rules of the National Assembly reads:
“
Members of each party are
entitled to give notices of motion when recognised by the presiding
officer for that purpose.”
Rule 129(1), (2) and (5) reads:
“
(1)
A member may propose that a motion of no confidence in the Cabinet or
the President in terms of
section 102 of the Constitution be placed
on the Order Paper.
(2)
The Speaker must accord such motion of no confidence due priority and
before scheduling
it must consult with the Leader of Government
Business and the Chief Whip.
. . .
(5)
After proper consultation
and once the Speaker is satisfied that the motion of no confidence
complies with the aforementioned prescribed
law, rules and orders of
the House and directives or guidelines of the Rules Committee,
the
Speaker must ensure that
the motion of no confidence is scheduled, debated and voted on within
a reasonable period of time given the programme of the Assembly.”
[39]
Was there also a mechanism applicable to the removal from
office of a President in terms of section 89 of the Constitution?
Section
89 of the Constitution reads:
“(1)
The National Assembly, by a resolution adopted with a supporting vote
of at least two thirds
of its members, may remove the President from
office only on the grounds of—
(a)
a serious violation of the Constitution or the law;
(b)
serious misconduct; or
(c)
inability to perform the functions of office.
(2)
Anyone who has been removed from the office of President in terms of
subsection (1)(a)
or (b) may not receive any benefits of that office,
and may not serve in any public office.”
Although the National Assembly had not
put in place a mechanism that is specially tailored for section 89,
it had put in place a
mechanism that could be used effectively for
the removal of a President in terms of section 89.  That
mechanism is the mechanism
of an ad hoc Committee.  This was the
effect of the undisputed evidence of the Acting Speaker in his
supplementary affidavit.
[40]
Part 15 of the Rules of the National Assembly governs ad hoc
Committees.  Rule 253 falls under Part 15.  Rule 253(1)-(5)

reads:
“(1)
An ad hoc committee may be established—
(a)
by resolution of the Assembly; or
(b)
during an adjournment of the Assembly for a period of more than
14 days, by the
Speaker after consulting the Chief Whip and the
most senior whip of each of the other parties.
(2)
Any decision by the Speaker to appoint an ad hoc committee must be
tabled in the Assembly
on its first sitting day after the decision
was taken, for ratification by the Assembly.
(3)
An ad hoc committee may only be
established for the performance of
a specific task
.
(4)
The resolution of the Assembly or decision of the Speaker
establishing an ad hoc committee
must—
(a)
specify the task assigned to the committee
; and
(b)
set time frames
for—
(i)
the completion of any steps in performing the task, and
(ii)
the completion of the task.
(5)
An ad hoc committee has those of
the powers
listed in Rule 167
only as are specified in the resolution or decision establishing the
committee.”
Rule 254(1) reads:
“
The
Assembly’s resolution establishing an ad hoc committee must
either specify the number of members to be appointed or the
names of
the members who are appointed
.”
[41]
In relevant parts section 56 of the Constitution reads as
follows in regard to some of the powers of the National Assembly or
any
of its committees:
“
Evidence
or information before National Assembly
The National
Assembly or any of its committees may—
(a)
summon any person to appear before it to give evidence on oath or
affirmation, or to produce documents
;
(b)
require any person or institution to report to it
;
(c)
compel, in terms of national legislation or the rules and orders,
any person or institution to comply with a summons or requirement
in
terms of paragraph (a) or (b); and
(d)
receive petitions, representations or submissions from any interested
persons or institutions.”
[42]
From section 56 it is clear that a committee of the National
Assembly, which would include an ad hoc Committee, may summon anybody

to appear before it and, more importantly, may allow any interested
person to make representations or submissions to such a committee.

This means that a President who is sought to be removed from office
by way of the section 89 procedure could be allowed to be heard.

However, he or she could be heard not only if a committee was
established but also by the National Assembly if no committee was

established.  It seems logical, in the light of section 56(d),
that a President facing a section 89 procedure may be allowed
legal
representation by such a committee or the National Assembly, as the
case may be, in its discretion.
[43]
From the above it is clear that the National Assembly did put
in place mechanisms and processes that could have been used to get

the National Assembly to hold the President accountable for his
failure to implement the Public Protector’s report or remedial

action.
[44]
After the hearing in this Court, the applicants delivered a
supplementary affidavit to respond to the Acting Speaker’s
supplementary
affidavit to which they had not had an opportunity to
respond before the hearing because it was served on them a day before
the
hearing.  The applicants’ supplementary affidavit was
also deposed to by Mr Malema.  In the supplementary affidavit,

the applicants’ case on this issue changed.  In the
applicants’ supplementary affidavit the deponent said:
“6.1.
It is not the Applicants’ case that there are not mechanisms
to hold the President to account available in the rules.
The
rules are flexible enough to create a mechanism to hold the President
accountable, including establishing an ad hoc committee
for that
purpose.
6.2.
However, the Applicants agree with the DA’s position that a
regime specifically tailored for section 89 proceedings is required

by the Constitution in order to fully fulfil the NA’s duties
under sections 42 and 55
.”
[45]
I take it that the first part of paragraph 6.1 does not mean
that it was never the applicants’ case that the National
Assembly
had failed to put in place mechanisms and processes to hold
the President accountable for failing to implement the Public
Protector’s
remedial action because, as shown above, that was
initially part of their case.  What it must mean is that, as at
the time
of the preparation of the applicants’ supplementary
affidavit, it was no longer the applicants’ case.  Understood

in this way, Mr Malema’s concession that the National Assembly
does have mechanisms to hold the President to account
and that its
rules are “flexible enough to create a mechanism to hold the
President accountable, including establishing an
ad hoc committee for
that purpose” is well made and is fully justified.
[46]
The second judgment concludes that the National Assembly has
failed to put in place a mechanism for the section 89 procedure.  The

second judgment reaches this conclusion despite the fact that, as I
have just demonstrated in the preceding paragraph, the applicants’

latest position now is that they accept that the National Assembly
has put in place mechanisms and processes which are flexible
enough
to hold the President accountable.  The second judgment’s
conclusion that the National Assembly has not put in
place a
mechanism for section 89 relates to a permanent mechanism.  This
case was not about a permanent mechanism but it was
about mechanisms
and processes to hold the current President accountable for failing
to implement the Public Protector’s
remedial action.  The
evidence of both the Acting Speaker and the applicants is clear:
it is that, the National Assembly
has put in place mechanisms and
processes which can be used for the section 89 procedure.
[47]
The second judgment is only able to reach this conclusion
because it rejects as ineffective the Rules of the National Assembly
which
provide for the establishment of an ad hoc Committee which the
Acting Speaker has said may be used effectively for any investigation

or inquiry that may be required for section 89.  The second
judgment’s rejection of an ad hoc Committee as a mechanism
that
may be effectively used for section 89 flies in the face of what is
common cause between the Acting Speaker, the EFF,
UDM and COPE.
This can be seen from the relevant parts of those parties’
affidavits.
[48]
In the applicants’ founding affidavit, the deponent said
in part:
“The EFF
submits that an ad hoc committee should be constituted to investigate
the President’s conduct in the light
of the judgment of the
Constitutional Court.”
[24]
This makes it clear that an ad hoc
Committee was acceptable to the applicants.  In his
supplementary affidavit, the Acting
Speaker said:
“The NA Rules
and procedures allow for a flexible approach and are adequate to
enable oversight in terms of section 89(1)
of the Constitution.”
[25]
[49]
In the applicants’ supplementary affidavit, the deponent
said about the availability of mechanisms:
“6.1.
It is not the Applicants’ case that there are not mechanisms to
hold the President to account
available in the rules.  The rules
are flexible enough to create a mechanism to hold the President
accountable, including
establishing an
ad hoc
committee for
that purpose.”
[50]
The deponent to the applicants’ supplementary affidavit
deposed to that affidavit on behalf of the EFF, UDM and COPE.

The EFF, UDM, COPE and the Acting Speaker (on behalf of the National
Assembly) are agreed that the National Assembly did put
in place
adequate mechanisms and processes that were flexible to be used
effectively for the section 89 procedure.
[51]
The DA said that an ad hoc Committee is not suitable for
the section 89 procedure.  That was contrary to the version put

up by EFF, UDM, COPE and the Acting Speaker who all said that the
National Assembly had put in place effective and flexible mechanisms

that could be used for the section 89 procedure.  This means
that there was a dispute of fact between not only the DA’s

version and the Acting Speaker’s version but also between the
DA’s version and the version of the other applicants,
namely,
EFF, UDM and COPE.  The question that arises is: in such a case,
on which version should this Court rely in making
its decision?
The DA is an applicant in these proceedings.  The Speaker is a
respondent.  It seems to me that,
in line with
Plascon-Evans
,
[26]
it is the Acting Speaker’s version that must prevail.  The
DA never asked this Court to refer any issue to oral evidence.

This Court would not hear oral evidence itself but, if it was asked
to, it could have done what it recently did in
SASSA
,
[27]
namely, refer the disputed factual issue to a referee for the hearing
of oral evidence.  In any event, the Speaker’s
version is
fully supported by the EFF, UDM and COPE.  The second judgment
fails to explain why it prefers the evidence of
the DA when that
evidence is in conflict with the evidence of all the other parties in
these proceedings including the evidence
of the applicants.
[52]
If one then accepts that the decision must be based on the
Acting Speaker’s and EFF’s, UDM’s and COPE’s
version that an ad hoc Committee is acceptable as an effective
mechanism for the section 89 procedure, it follows that it simply

cannot be said that the National Assembly failed to put in place
mechanisms and processes to hold the President accountable.
Accordingly,
from this it is clear that the conclusion that the
National Assembly failed to put in place mechanisms to hold the
President to
account is untenable, unjustifiable and inexplicable.
[53]
In their supplementary affidavit, the applicants say that, had
they understood that they could initiate the establishment of an ad

hoc Committee, they would have followed that procedure.  The
deponent to the applicants’ supplementary affidavit says:
“If the EFF
had understood the rules that way, it would have followed that
procedure.  It did not.  If the Speaker
understood the
rules that way, surely she would have advised the EFF to follow that
procedure.  She did not.”
A little later, he also said:
“I note the
Speaker’s position that the EFF could have brought a
substantive motion to establish an ad hoc Committee.
I do not
understand why the Speaker did not provide that advice in response to
the EFF’s numerous requests for a fact-finding
inquiry to
investigate President Zuma’s conduct.”
[28]
[54]
Mr Malema’s complaint that he did not understand why the
Speaker did not provide the advice concerning the availability of
the
route of an ad hoc Committee to the EFF when the EFF wrote to her is
not without merit.  However, it would appear that
the Speaker
may also not have been aware that an ad hoc Committee was a mechanism
that could be used for the section 89 procedure.
Of course, one
cannot pretend as if the correspondence that was exchanged between
the parties does not reveal some underlying tension
between them.
Lastly, on this, the fact that the availability of the route of an ad
hoc Committee was only raised a day or
two before the hearing in this
Court does not mean that it is not a defence.  The fact that it
was raised late could affect
the issue of costs in an appropriate
case.  It would not change the fact that it is a defence.
[55]
Although all members of the National Assembly are expected to
know the rules of the National Assembly, there is an expectation that

the Speaker would know the rules of the National Assembly better than
everyone else.  In this case the Speaker can be criticised
for
not having shown that greater knowledge of the rules of the
National Assembly.  In her answering affidavit she said

that rule 85 was the rule that could be used for the section 89
procedure.  That was not correct.  She also did not point

out that an ad hoc Committee – for which the rules of the
National Assembly make provision – could be used to conduct
any
investigation or inquiry that could be needed for a section 89
procedure.  It fell upon the Acting Speaker to point this

important provision out in his supplementary affidavit.  It may
well be that, if this had been pointed out much earlier, the
matter
may have been resolved.  Of course, it might as well not have
been resolved because on the day of the hearing the parties
did try
to resolve the matter without success after questions from the Bench
had been put to counsel for all parties as to why
the ad hoc
Committee route had not been followed.
[56]
Furthermore, in his supplementary affidavit the Acting Speaker
said that in 2007 a joint ad hoc Committee of both Houses of
Parliament
was established to remove from office the then National
Director of Public Prosecutions (NDPP).  He pointed out that the
two
Houses of Parliament resolved on that occasion that the NDPP
should not continue in office.  This had followed upon an
inquiry
which had been appointed by the then President of the
Republic to inquire into the suitability of the then NDPP to continue
holding
office as NDPP.  This is not denied by any of the
parties.  The question that arises is: if an ad hoc Committee
mechanism
worked in the case of the removal of an NDPP, why would it
not work in the case of the removal of the President?  I do not

think that a logical explanation can be given as to why it would not
work in the case of the removal of a President.
[57]
The Acting Speaker has pointed out two other occasions where
the Official Opposition has previously moved motions for the
establishment
of ad hoc Committees in the National Assembly.  As
indicated earlier, in 2014 the Leader of the Opposition moved a
motion
in the National Assembly for the establishment of an ad hoc
Committee which was accepted by the National Assembly and an hoc

Committee was established.  The purpose of that ad hoc Committee
was to determine whether the President had committed a serious

violation of the Constitution in regard to his role in the Nkandla
project.  That committee had not completed its task when

Parliament was dissolved in 2014 ahead of the 2014 general elections.
[58]
The Acting Speaker has also pointed out that, when in 2015 the
Leader of the Opposition wanted the President to be subjected to a

section 89 process in regard to President Al-Bashir’s departure
from South Africa despite the existence of an order of court
that
President Al-Bashir should not be allowed to leave the country, he
moved a motion in the National Assembly for the establishment
of an
ad hoc Committee.
[59]
The Acting Speaker said that the Rules Committee of the
National Assembly established a sub-Committee which was mandated to
consider,
among others, the issue whether a special mechanism should
be put in place for the section 89 procedure.  He said that all

the political parties including those before us were represented in
that sub-Committee.  The Acting Speaker’s undisputed

evidence was that the applicants and the DA were represented in that
sub-Committee and were invited to make proposals but their

representatives asked for an opportunity to go and consult their
parties on what proposals, if any, they should make and they have

never returned to the sub-Committee.  Instead of going back to
the sub-Committee and making their proposals about an appropriate

section 89 mechanism, the applicants instituted the present
proceedings.  They should have gone back to the sub Committee.
[60]
The applicants have not denied the Acting Speaker’s
evidence that the reason why that sub-Committee has not completed its
task is that representatives of the applicants who served on that
sub-Committee have not returned to the sub-Committee to tell the

sub-Committee what their political parties’ respective
positions are.  They have also not taken this Court into their

confidence and explained to us why they came to Court before they
went back to the sub-Committee and put their proposals to that

sub-Committee.  In my view, the most sensible response by this
Court to this is to insist that the applicants go back to that

sub-Committee and make their proposals to it and see whether any
unconstitutional obstacles are put in their way.  This approach

shows respect for a parliamentary process and seeks to discourage
litigants from approaching this Court or any court for that matter
in
regard to an issue which is capable of being resolved without going
to court.  The second judgment does not say what is
wrong with
this approach.
[61]
The second judgment says that the
use of an ad hoc Committee for the section 89 procedure may
result in the matter which is
the subject of the section 89 inquiry
or investigation not reaching the National Assembly. This view is
incorrect.  An ad
hoc Committee is created by the National
Assembly to perform a specific task for and on behalf of the National
Assembly.  Once
it has completed its task, it needs to report
back to the National Assembly with its findings and recommendations.
Ultimately,
the National Assembly must deliberate on the report
of the ad hoc Committee and accept or reject its findings,
conclusions or recommendations.
So, there is no chance that a
matter that the National Assembly has given to an ad hoc Committee to
investigate or inquire
into may end up not being considered and
decided by the National Assembly.
[62]
The second judgment also complains
that there is no definition of the word “serious” in the
term “serious violation”
in section 89 and says that this
would create a problem because different members of the ad hoc
Committee could end up having different
views on whether a violation
is serious.  There is no merit in this criticism either.  In
terms of section 42(3) of our
Constitution the National Assembly is a
“national forum for public consideration of issues”.
That means it is
a forum in which issues are publicly debated.
Therefore, it is not a bad thing for different members of the
National Assembly
to hold different views on any issue.  Our
Constitution expects there to be different views on issues in the
National Assembly.
That is why it provides in section 53(1)(c)
that all questions before the Assembly are decided by a majority of
the votes
cast.
[63]
A matter that has been the subject
of a section 89 process is no exception.  When it reaches the
National Assembly, it would
also be decided by a vote.  In all
probability there would be some members of the National Assembly who
would take the view
that there has been a serious violation of the
Constitution whereas others would take the view that there has not
been a serious
violation of the Constitution.  If it is
permissible for different members of the National Assembly to take
different views
on whether a violation is serious, why should this be
objectionable if it happens in an ad hoc Committee – a creation
of
the National Assembly?  In any event, even members of this
Court could take different views on such an issue if this Court
were
called upon to decide it.  Even different members of a permanent
Committee that could deal with section 89 processes
in the future
could take different views on whether or not in a particular case a
violation is serious.
[64]
The second judgment also seems to
take the view that there must be rules that define the word “serious”
or the terms
“serious violation” or “serious
misconduct” in section 89.  There is no need for that.
Whether
a violation is serious or not is a value judgment that
a person must form in a given set of facts.  No definition of
the word
“serious” would ensure that members of a
Committee or of the National Assembly have the same view in every
case on
whether a violation of the Constitution is serious.  In
our law there are no rules defining the word “fair” or

the word “reasonable” and yet our courts and various
tribunals make decisions on what is reasonable or fair all the
time
and there are no problems about that.
[65]
The second judgment also seems to
find it problematic that the proportional representation of political
parties in the National
Assembly is used to determine the size of the
representation of different political parties in an ad hoc
Committee.  That
criticism finds no support in the Constitution.
In fact such proportional representation is authorised by
section 57(2)(b)
of the Constitution.  That provision says that
“(t)he rules and orders of the National Assembly must provide
for . .
. (b) the participation in the proceedings of the National
Assembly
and its committees of the
minority parties represented in the Assembly in a manner consistent
with democracy
…”.  Any
representation of political parties on a Committee of the National
Assembly will have to be based on
the size of that political party’s
proportional representation in the National Assembly.  There is
nothing constitutionally
objectionable about that.
[66]
I conclude that the Speaker has successfully shown that the
allegation or contention that the National Assembly has failed to put

in place mechanisms and processes for holding the President
accountable has no foundation.  As already indicated, the
applicants
now accept this.  This conclusion means that prayer 2
of the notice of motion cannot be granted.
Can prayers 5 and 6 of the Notice of
Motion be granted?
[67]
This conclusion also means that prayers 5 and 6 cannot be
granted.  Prayer 5 is a prayer for an order directing in effect
the
National Assembly “to put the requisite processes and
mechanisms in place to hold the President accountable for his conduct

(and failures) arising from, and incidental to, the report of the
Public Protector dated 19 March 2014 including processes and

mechanisms to inquire into and determine whether and to what extent
the President’s violation of the Constitution and/or
other
conduct satisfied the requirements of section 89(1) of the
Constitution.”
[68]
There is no need or justification for this prayer because, as
I have found above, there are mechanisms and processes that the
National
Assembly has put in place which can be used effectively to
hold the President accountable for the conduct in question.  All

that the applicants need to do is to initiate those mechanisms and
processes.  If they choose to use the motion of no confidence,

they can force the President to resign provided that they are able to
get the support of the majority of the members of the National

Assembly for that motion.  If they choose to use the section 89
procedure, they would need to move a motion in the National
Assembly
for the removal of the President and that motion should contain a
resolution to be passed by the National Assembly that
the President
has committed a serious violation of the Constitution or the law or
has committed serious misconduct and should have
a provision for the
removal of the President.  In the case of a section 89
procedure, the President would be removed only
if the motion of
removal from office were to be supported by a two thirds majority of
the members of the National Assembly.
[69]
If a President is removed from office in terms of section 89,
he or she forfeits all benefits of the office of President and is
disqualified from occupying any public office.  The second
judgment says that, when a President is removed from office in terms

of section 89, he or she may lose the benefits of that office.  In
other words, the second judgment takes the view that the
loss of
benefits is not automatic upon removal from the office of President.
The wording of the provision is such as to preclude
a person
who has been removed from the office of President from receiving the
benefits of such office if the removal is based on
a serious
violation of the Constitution or the law or serious misconduct.  He
or she also gets precluded from thereafter holding
any public
office.  When the removal from office is based on a President’s
inability to perform the functions of office,
the person removed from
the office of President does not forfeit the benefits of office.  Nor
does he or she get precluded
from holding any public office
thereafter.  Section 89(2) provides that “(a)nyone who has
been removed from the office
of President in terms of subsection 1(a)
or (b) may not receive any benefits of that office and may not serve
in any public office”.
Subsection 1(a) and (b) are
serious violation of the Constitution or the law and serious
misconduct.
[70]
Prayer 6 in the notice of motion cannot survive the conclusion
that the National Assembly did put in place mechanisms and
processes
that could be used to hold the President accountable for
his failure to implement the Public Protector’s remedial
action.
Prayer 6 is for an order “[d]irecting the
National Assembly to convene a committee of Parliament and/or any
other appropriate
independent mechanism, to conduct an investigation
into the conduct of the President and, in particular, whether, by any
act and/or
omission, the President has made himself guilty of an
offence or inability which would warrant the exercise of the powers
of Parliament
in terms of section 89(1) of the Constitution”.
[71]
There is also no need or justification for this prayer
because, as the applicants have conceded, the National Assembly did
put in
place a mechanism and process that could be used to perform
the task that would have been performed by the Committee contemplated

in prayer 6 if prayer 6 were to be granted.  That is the
mechanism of an ad hoc Committee provided for in the rules of the

National Assembly.  The applicants have not said that they
availed themselves of these avenues and were frustrated or anything

of that kind and, therefore, had to come to this Court and ask for
relief.
[72]
Should the Court order the National Assembly to convene a
Committee to conduct a section 89 inquiry?  There is no legal
basis
for the Court to make such an order.  This is because, if
the applicants want such a Committee, they have a right in terms
of
the rules of the National Assembly to table in the National Assembly
a motion with a resolution for the establishment of an
ad hoc
Committee with a mandate to conduct such an investigation or
inquiry.  Once they have done that, the motion would be

deliberated upon and voted on in the National Assembly.  If the
motion is passed, such a committee will be established.
The
establishment of a committee must follow the process or procedure
prescribed by the rules of the National Assembly.  Those

procedures include that a motion must be moved in the National
Assembly for a resolution establishing such a committee and that

motion must be deliberated and voted upon.
[73]
In any event, an order that the National Assembly convene such
a committee would assist the applicants to bypass a democratic
process
of which such a Committee is constitutionally required to be
the product.  I say this because section 53(1)(c) of the
Constitution
is to the effect that “all questions before the
Assembly are decided by a majority of the votes cast”.
This means
that one cannot speak of a decision of the National
Assembly unless it is a decision or resolution that is supported by
the majority
of votes cast.  A litigant cannot, therefore, ask a
court to make a decision that should be the outcome of votes cast in
the
National Assembly when he or she fears that the majority in the
National Assembly might not support the decision he or she wants.

In other words, there is a democratic process that must first take
place in the National Assembly before such a Committee may be

established.  That is a constitutional requirement.  Prayer
6 seeks to bypass that constitutional process.
[74]
Courts exist to adjudicate disputes.  Before the
applicants instituted these proceedings, there was no dispute between
them
and the National Assembly or the Speaker about whether or not
any committee provided for in the rules of the National Assembly

should be established to investigate or inquire into anything
concerning the President’s conduct.  The EFF had asked
the
Speaker for the establishment of a committee or panel to discipline
the President which fell outside the rules of the National
Assembly.
There is no suggestion by anybody that any member of the applicant
parties or the DA ever moved in the National
Assembly a motion for
the establishment of a committee to investigate or inquire into the
President’s conduct and the National
Assembly refused to
establish it.  The applicants and the DA came to Court to ask it
to order the National Assembly to convene
such a Committee without
there being a dispute about whether such a Committee should be
established.  This Court should insist
that there should be a
dispute first before it can be asked to make an order in regard to an
issue.  This judgment says so.
The second judgment seeks
to adjudicate a non-existent dispute in this regard.
Should this Court order the National
Assembly to put in place a special mechanism for section 89?
[75]
The starting point in dealing with this part of the
applicants’ case is section 57(1) of the Constitution.
Section
57(1) reads:
“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.”
This provision means that it is the
National Assembly and not the Court which the Constitution gives the
power to determine and
control the National Assembly’s own
proceedings and procedures.  It is important to recall what this
Court said through
the Chief Justice in
EFF 1
:
“It falls
outside the parameters of judicial authority to prescribe to the
National Assembly . . .
what mechanisms to establish and
which mandate to give them, for the purpose of holding the Executive
accountable and fulfilling
its oversight role of the Executive or
organs of State in general.  The mechanics of how to go about
fulfilling these constitutional
obligations is a discretionary matter
best left to the National Assembly
.  Ours is a much broader
and less intrusive role.  And that is to determine whether what
the National Assembly did does
in substance and in reality amount to
fulfilment of its constitutional obligations.  That is the sum
total of the constitutionally
permissible judicial enquiry to be
embarked upon.”
[29]
When, therefore, the National Assembly
considers two or more options or models of mechanisms to determine
which one should be decided
upon for the section 89 procedure, this
Court would infringe the doctrine of the separation of powers if it
were to prescribe to
the National Assembly which option or model the
National Assembly should adopt.  That is not the role of courts.
[76]
In paragraph 6.2 of the applicants’ supplementary
affidavit the applicants say that they join the DA in seeking the
establishment
of permanent mechanisms for the section 89 procedure.
A reading of the DA’s affidavit reveals quite clearly that it

is asking this Court to make an order establishing a permanent
mechanism for the section 89 procedure.  One can see this from

the way that the DA complains that an ad hoc Committee is simply
inadequate for the section 89 procedure.
[77]
Mr James Selfe, who deposed to the DA’s affidavit,
expressed various complaints about ad hoc Committees and said that ad
hoc
Committees are not suitable for impeachment investigations.
He then said:
“These ad hoc
committees illustrate precisely
why specialised rules and
procedures are required for impeachment
investigations and
hearings, established in advance of actual cases.”
[30]
Later, Mr Selfe again said:
“This
confusion [about two or so ad hoc Committees to which he had just
referred] again highlights why procedures must be
in place to govern
impeachment investigations and hearings in advance of actual cases.”
[31]
He went on to say:
“The DA’s
case is that the National Assembly has breached its constitutional
obligations by failing to enact legislation
or to pass rules creating
effective mechanisms for impeachment proceedings.  This does not
require a challenge to the existing
Rules, which are entirely silent
on impeachment procedures.”
[32]
[78]
Reference has been made above to the evidence of the Acting
Speaker about a sub-Committee of the Rules Committee of the National

Assembly which was mandated to consider whether a special mechanism
should be put in place for the section 89 procedure or whether
the
position should be left as it was then and as it still is now.
That is that the rules of the National Assembly provide
for the
establishment of an ad hoc Committee which may be established to deal
with specific tasks including the section 89 procedure.
The
Acting Speaker says that any member of the National Assembly may move
a motion for the establishment of an ad hoc Committee
which may
conduct the investigation and inquiry that may be required in a
specific case concerning the removal of a President under
section
89(1).  It seems implied in his affidavit that it is the member
of the National Assembly seeking a resolution of the
National
Assembly removing a President who must move a motion for the
establishment of an ad hoc Committee if he or she wants such
a
Committee to conduct such an investigation or inquiry.
[79]
From the supplementary affidavit of the Acting Speaker, it is
clear that the sub Committee would have to decide whether to
recommend that the status quo be retained in which case an ad hoc
Committee would be used if a Committee were required for a section
89
procedure or whether a permanent mechanism should be put in place for
a section 89(1) procedure.  The Acting Speaker points
out that
the section 89 procedure is not something that is invoked
regularly.  This is because attempts to impeach a
President do
not happen very often.  He says that this may make the mechanism
of an ad hoc Committee a more suitable option
than the option of
putting in place a permanent mechanism.
[80]
The Acting Speaker goes on to say:
“The NA Rules
currently enable proceedings under section 89(1) to be initiated when
a member of the NA tables a substantive
motion requiring such an
initiation of the proceedings in which there may be a request for the
establishment of an ad hoc committee
inter alia to gather relevant
facts or to conduct an inquiry or an investigation prior to the
adoption of a resolution by the NA
as envisaged in section 89(1)
of the Constitution.”
[33]
This is not denied or disputed by any of
the applicants including the DA.
[81]
It is appropriate at this stage to once again refer to the
sub-Committee to which the Acting Speaker referred in his
supplementary
affidavit.  In part he said the following with
regard to that sub-Committee:
“61.
During proceedings of the subcommittee, the possible need for the NA
Rules to regulate section
89 motions was raised and discussed for the
first time in September 2015.  At this point it was agreed that
research on the
matter was necessary and the subcommittee tasked the
Chief State Law Advisor and National Assembly Secretariat to
undertake the
research.
62.
The research was accordingly presented and the draft rules produced
by an external consultant
[were] presented to the subcommittee.
63.
Following further deliberations on the matter, members of the
subcommittee agreed that policy
guidance was required from political
parties, and resolved to refer the proposed rules to political
parties for their input.
This decision was reflected in the
report of the subcommittee. . ..
64.
Since May 2016 to date, not a single political party, including any
of the applicants, have
made any input with regard to the proposed
rule.”
[82]
From this quotation from the Acting Speaker’s
supplementary affidavit, it is clear that it is the representatives
of the political
parties represented in the sub Committee
including the representatives of the applicants who did not return to
the sub-Committee
to make proposals that the rules should make
provision for a special mechanism for the section 89 process.  The
applicants
and the DA have not denied this.  That, therefore,
means that the applicants defaulted on their obligations towards the
National
Assembly.  Had they returned to the sub-Committee and
proposed that a permanent mechanism be established, there may long
have
been a special mechanism for the section 89 process.  This
means that the applicants and the DA are the authors of the situation

about which they have now come to court.  They cannot be allowed
to benefit from their own breach of their obligations to
the
National Assembly.  They have given us no explanation why
they did not go back to the sub-Committee to make their
proposals.
They owed us that explanation.  This judgment insists that, in
the absence of a sound explanation for that
default on their part,
this Court should tell them to go back to that sub-Committee and make
use of that Parliamentary structure.
The second judgment
overlooks this important aspect of the applicants’ case.
Overlooking this encourages political
parties which are
represented in the National Assembly to ignore internal remedies and
Parliamentary structures and processes.
That is bad for our
constitutional democracy.
Has the National Assembly failed to
hold the President accountable?
[83]
The applicants’ case is also that the National Assembly
has an obligation to hold the Executive, including the President,
accountable but that, since 31 March 2016 when this Court handed down
its judgment in
EFF 1,
the National Assembly has done nothing
to hold the President accountable for his failure to implement the
Public Protector’s
remedial action.  That the
National Assembly has such a constitutional obligation is beyond
dispute.  Sections 42(3)
and 55(2) of the Constitution place
such an obligation on the National Assembly.
[34]
Section 92(2) of the Constitution provides that members of the
Cabinet “are accountable collectively and individually
to
Parliament for the exercise of their powers and the performance of
their functions”.  Furthermore, this Court’s

judgments in
Mazibuko
,
EFF 1
and
UDM
have also
emphasised that obligation.  What is in dispute between the
applicants and the Speaker under this heading is whether
or not since
31 March 2016 the National Assembly has held the President
accountable for his failure to implement the Public
Protector’s
remedial action.  The applicants say that it has not whereas the
Speaker says it has.
[84]
In prayer 3 the applicants ask this Court to make an order:
“Declaring
that the first respondent has failed in her duty to apply her mind
and/or to scrutinise the violation of the Constitution
by the
President in the course of his failure to implement the report of the
Public Protector dated 19 March 2014.”
Although prayer 3 contemplates a
declaratory order that the first respondent has failed to scrutinise
the violation of the Constitution
by the President, the applicants
actually mean the National Assembly because they cited the first
respondent in her representative
capacity on behalf of the National
Assembly.  Therefore, prayer 3 must be understood to contemplate
a declaratory order that
the National Assembly has failed to
scrutinise the violation of the Constitution by the President in
failing to implement the Public
Protector’s remedial action.
[85]
The applicants’ case here is that the National Assembly
has breached its obligation to hold the President accountable for his

conduct in failing to implement the Public Protector’s remedial
action.  In this regard the applicants say that the
National
Assembly has done absolutely nothing to hold the President
accountable for his failure to implement the Public Protector’s

remedial action which is a violation of the Constitution.  There
are a number of areas in the applicants’ founding affidavit

where the deponent makes it clear that part of the applicants’
case is that the National Assembly has not done anything
to hold
the President accountable for that failure.  I refer to a few
below.
[86]
In the applicants’ founding affidavit the deponent said:
“The crux of
the application is the alleged failure of Parliament to fulfil its
unique constitutional obligations to hold
the President accountable,
both generally and ultimately, in terms of section 89 of the
Constitution.”
[35]
Later, in the same affidavit, he said:
“The National
Assembly, under the leadership of the first respondent,
has failed
to take any action in response to the judgment of the Constitutional
Court, despite it being her duty to hold the President
accountable
and to scrutinise his conduct
.  The constitutional
violations by the President require consideration and examination by
the National Assembly.”
[36]
The applicants have also said:
“This
application seeks to compel the National Assembly to carry out its
constitutional functions to scrutinise and enquire
into the conduct
of the President in two respects: first it seeks a declaratory order
that the inaction of the National Assembly
in the face of such
egregious violations of the Constitution by the President is
unconstitutional.  Second, it seeks an order
compelling the
first respondent to cause the taking of all the necessary and
appropriate steps to determine the seriousness of
the violations by
the President as a prelude to reporting to the National Assembly and
for the purposes of holding the President
accountable.”
[37]
[87]
The question that arises, therefore, is whether it is true
that, since the hand down of this Court’s judgment in
EFF I
on 31 March 2016, the National Assembly has not done anything to hold
the President accountable for failing to implement the Public

Protector’s remedial action.  The second judgment deals
with the matter as if the applicants’ case is that the
National
Assembly failed to use the section 89 procedure to hold the
Presidents accountable.  That is not the applicants’
case.
As the passages I have quoted above from the applicants’
affidavits show, the applicants’ case is that
the National
Assembly failed to do anything to hold the President accountable for
failing to implement the Public Protector’s
report.  The
Speaker has denied the applicants’ accusation that the National
Assembly did not do anything to hold the
President accountable after
this Court’s judgment in
EFF1
had been handed down.
She went on to say: “I shall demonstrate in what follows that
the allegations of the applicants
are devoid of the truth and that
the whole case brought by the applicants has no merit”.
[88]
In support of her assertion, the Speaker referred to the
following—
(a)
on 5 April 2016 and following upon the
hand down of this Court’s
judgment in
EFF 1
, the Leader of the Opposition moved a motion
in terms of the Rules of the National Assembly for a resolution by
the National Assembly
removing the President from office in terms of
section 89(1); this was on the basis, inter alia, that this Court had
found that
the President’s failure to implement the Public
Protector’s remedial action was unlawful, inconsistent with the
Constitution
and invalid; that motion was deliberated and voted upon
but was defeated; the Speaker or Acting Speaker said that the leaders
of
the applicants supported that motion and actively participated in
the debate in the National Assembly; the EFF, UDM and COPE did
not at
that stage say that the motion should have been preceded by a
fact-finding inquiry; it is implied in the Speaker’s
response
that she thinks that the applicants’ belated criticism of that
motion as having been premature is opportunistic.
(b)
in terms of the rules of the National Assembly,
if the Leader of the
Opposition had deemed it necessary that the vote be preceded by the
establishment of an ad hoc Committee that
would conduct an
investigation and inquiry for the section 89 procedure, he was free
to move a motion for the establishment of
such an ad hoc Committee by
the National Assembly but he did not do so; since the DA never moved
a motion for the establishment
of such a Committee and was frustrated
in one way or another, the DA cannot justify coming to Court and
complaining that the National Assembly
has not held the
President accountable in terms of section 89 after a fact-finding
committee.
(c)
on 10 November 2016 the Leader of the Opposition
moved a motion of no
confidence in the President in terms of rule 129 of the Rules of the
National Assembly read with section 102(2)
of the Constitution; this
motion was deliberated and voted upon in the National Assembly.
The majority voted against the
motion.  Therefore, the motion
was defeated.
(d)
pursuant to this Court’s judgment in
EFF 1
, 27 questions
relating to that judgment and surrounding issues were put to the
Executive including the President; in 2017 16 questions
were put to
the Executive and a number of responses had been provided as at the
date of the signing of the Acting Speaker’s
supplementary
affidavit.
On 8 August 2017 the Leader of the
Opposition moved a motion of no confidence in the President for his
failure to implement the
public protector’s remedial action.
That motion was debated.  It was then voted upon in secret after
the Speaker
had ruled that the vote should be by secret ballot.
That was the National Assembly holding the President accountable for
his failure to implement the Public Protector’s remedial
action.
[89]
The fact that on 5 April 2016 a motion for the removal of the
President was moved, deliberated and voted upon but was defeated in

the National Assembly and the fact that on 10 November 2016 and on 8
August 2017 motions of no confidence in the President were
moved,
deliberated and voted upon but were defeated prove that the National
Assembly did not just sit idle and do nothing as the
applicants claim
but that it acted upon the President’s conduct and held him
accountable.  The fact that those motions
were defeated does not
detract from the fact that the National Assembly did hold the
President accountable.  In the applicants’
supplementary
affidavit the deponent says that it is not the applicants’ case
that a motion for the removal of a President
in terms of section 89
must succeed before it can be said that the National Assembly has
held the President accountable.
The applicants’ position
must be the same as well in regard to motions of no confidence in the
President which are moved,
deliberated and voted upon but are
defeated.
[90]
In
UDM
this Court held that Question and Answer
sessions in the National Assembly involving the Executive,
including the President,
motions of no confidence in the President in
terms of section 102 and motions for the removal of the President in
terms of section
89 are accountability mechanisms that can be used
and are used by the National Assembly to hold the Executive,
including the President
accountable.
[38]
This Court also referred to the mechanisms provided for in sections
89 and 102 of the Constitution.  Those are, respectively,
the
motions for the removal of the President from office and the motion
of no confidence in the President.  With regard to
the motion of
no confidence, this Court had this to say in
Mazibuko
:
“A motion of
no confidence in the President is a vital tool to advance our
democratic hygiene.  It affords the Assembly
a vital power and
duty to scrutinise and oversee executive action.”
[39]
In
UDM
the Chief Justice said: “A
motion of no confidence is, in some respects, potentially more
devastating than impeachment.”
[40]
[91]
The applicants have not advanced any ground upon which it can
be said that the motion of no confidence in the President that were

moved by the Leader of the Opposition on 10 November 2016 and on 8
August 2017 and which related inter alia to the President’s

failure to implement the Public Protector’s remedial action
were in any way deficient.  The applicants have not shown
any
basis for any suggestion, if one is intended, that these motions did
not constitute holding the President to account on the
part of the
National Assembly.
[92]
In this regard, it must be borne in mind that it is not
necessary that there be many motions of no confidence in the
President before
it can be said that the National Assembly has
held the President accountable for his failure to implement the
Public Protector’s
remedial action.  A single motion of no
confidence in the President is enough.  The position is not
that, if a motion
of no confidence in the President was deliberated
and voted upon but there was no motion for the removal of the
President in terms
of section 89, the National Assembly has not held
the President accountable.  This has to be so because, if a
single motion
of no confidence in the President were to succeed,
nobody could say that the National Assembly had failed to hold the
President
accountable.
[93]
It cannot be, and I think the applicants accept this, that, if
the motion of no confidence in the President succeeds, the National

Assembly will be said to have held the President to account but, if
the motion is defeated, it would be said that the National
Assembly
has not held the President to account.  Whether the
National Assembly has held the President to account through
a
motion of no confidence in him or not cannot depend upon the result
of the vote.  If this is correct, then the fact that
motions of
no confidence in the President were moved, deliberated and voted upon
on 10 November 2016 and 8 August 2017 means that
the
National Assembly did hold the President to account through such
motions.  This, therefore, means that the foundation
of the
applicants’ case on this issue, namely, that the National
Assembly has done nothing since the judgment of this Court
in
EFF
1
to hold the President accountable has been shown to be untrue
and unjustified.  The National Assembly did do something and
it
did hold the President to account.  Therefore, the applicants’
contention that the National Assembly did nothing
to hold the
President to account falls to be rejected.
[94]
In the applicants’ founding affidavit the deponent says
that “[
a
]
t the very least, then, the National
Assembly should take steps to investigate the severity of the
President’s misconduct.
Again, how the Speaker and the
National Assembly go about doing so may well be within their sole but
rational discretion.
The EFF submits that an ad hoc committee
should be constituted to investigate the President’s conduct in
light of the judgment
of the Constitutional Court (including whether
he misled Parliament).
As far back as April 2016, the
EFF
and the Democratic Alliance requested the Speaker to
institute investigative action along those lines.  Like the
Public Protector’s
report and the judgment of the
Constitutional Court, both requests were met with silence
.”
[95]
In the applicants’ supplementary affidavit the deponent
said that it is not the applicants’ case that the National
Assembly
has not put in place mechanisms and processes to hold the
President accountable.  He added that indeed there are such
mechanisms
and they include an ad hoc Committee which can be used for
the section 89 procedure.  Once the applicants concede
this,
then the position is that they failed to use mechanisms and
processes to hold the President accountable in terms of section 89.

If they had the same right as everyone else in the National Assembly
to get the National Assembly to hold the President accountable
under
section 89 but they did not use the opportunity, they cannot complain
that the National Assembly did not use the section
89 procedure
properly to hold the President accountable.
[96]
The deponent to the applicants’ founding affidavit says:
“The EFF is
therefore forced to approach this Court for relief.  The Speaker
and the National Assembly persist in their
failure to scrutinize and
oversee the President’s conduct.
They perpetuate a
culture of impunity and unaccountability.  As with the Public
Protector’s report, the judgment of the
Constitutional Court
requires the urgent attention of, and an intervention by, the Speaker
and the National Assembly.  Once
again, their obligations to
scrutinise and oversee executive action and hold the President
accountable have been triggered.
They cannot be allowed to
persist in their silence and inactivity.
”
It is clear from what the deponent says
in some of the excerpts from the applicants’ founding affidavit
quoted above that
what the applicants wanted to achieve by bringing
this application was to compel the National Assembly “to take
steps to
investigate the severity of the President’s
misconduct”.  Taking those steps actually means, in this
part of the
applicants’ case, the establishment of an ad hoc
Committee that would conduct an inquiry into the President’s
conduct
in terms of section 89.
[97]
The applicants’ founding affidavit also says that “[t]he
purpose of this application is to compel the Speaker to cause
the
National Assembly to finally discharge the constitutional obligation
of oversight over the President”.  If, as the
applicants
say, the purpose of this application was to “compel the
National Assembly to carry out its constitutional functions
to
scrutinise and enquire into the conduct of the President”,
certain questions arise.  One of them is: what needs to
be done
in order to get the National Assembly to take all necessary and
appropriate steps to determine the seriousness of the violations
by
the President as a prelude to reporting to the National Assembly?
Another question is: is the Speaker the only person
who can cause the
taking of those steps?  Yet another question is: are the
applicants’ members who are members of the
National Assembly
not also free to take the steps necessary to cause the National
Assembly to determine the seriousness of the
violations of the
Constitution by the President?  The answer is: Yes, they too,
have a right to cause those steps to be taken
by the National
Assembly.  Indeed, as part of the National Assembly, they
are obliged to take such steps.
[98]
If the applicants or their members who are part of the
National Assembly are also free to do what needs to be done in order
to get
the National Assembly to determine the seriousness of the
violations, did the applicants ever get their members to take these
steps
and, maybe, they got frustrated?  If the applicants did
not get their members who are part of the National Assembly to take

those steps in order to achieve the removal from office of the
President in terms of section 89, why did they approach this Court

without first getting their members to take those steps and see
whether there would be any opposition to the establishment of an
ad
hoc Committee?  The applicants have indicated that they were not
aware that an ad hoc Committee can be used as a mechanism
for the
section 89 process and that, if they had been aware, they would have
used it.  I accept this explanation.  This
explanation is
supported by the fact that the applicants stated in the founding
affidavit that at least an ad hoc Committee should
be constituted to
investigate the conduct of the President in regard to the
Public Protector’s remedial action.
It seems to me
that, if they knew an ad hoc Committee could be established for the
section 89 process they would have taken steps
to have an ad hoc
Committee established.  It may be that, once the applicants had
received the Acting Speaker’s supplementary
affidavit in which
he explained that an ad hoc Committee could be used for the section
89 process, this aspect of the matter should
have been resolved
between the applicants and the Speaker.  The Court is aware that
there were attempts to resolve the entire
matter on the day of the
hearing but they were not successful.  Nothing more needs to be
said about the issue of a possible
resolution of the matter between
the parties.
[99]
Are the applicants entitled to a declaratory order that the
National Assembly has failed to hold the President accountable in
terms
of section 89?  In my view, they are not.  For the
National Assembly to hold the President accountable under section 89,

a member of the National Assembly needs to move a motion for the
removal of the President under that section and that motion needs
to
be deliberated and voted upon.  If that member thinks that the
case against the President is such that the National Assembly
should
establish an ad hoc Committee which will conduct an inquiry into the
existence or otherwise of any one or more of the grounds
listed in
section 89, that member is required to include that in the resolution
that he or she asks the National Assembly to pass.
If the
National Assembly passes that resolution, an ad hoc Committee
will be established and it will conduct an inquiry and
report back to
the National Assembly with its findings and recommendations.
The National Assembly will then decide whether
to accept or
reject the findings or recommendations of that Committee.
[100]
It is clear from section 89, which has been quoted above, that
in order to achieve the removal of a President under that section,

one or more of the three grounds set out in that section should
exist.  Those grounds are that the President must—
(a)
have committed a serious violation of the Constitution or the law;
(b)       have committed serious
misconduct; or
(c)
be unable to perform the functions of office.
[101]
The mere fact that one of the grounds for the removal of a
President from office in terms of section 89 is present or exists
does
not mean that, therefore, the President will or must necessarily
be removed from office.  The presence of at least one of the

grounds is a precondition that must be satisfied before the
National Assembly may resolve to remove or not to remove a
President.
This means that one could have a situation where one
of the grounds is present, but the President does not get removed and
continues
in office.  This could happen despite the fact that
the President may be guilty of a serious violation of the
Constitution
or the law or may be guilty of serious misconduct.
This may sound strange because it may be difficult to understand why
a
President who is guilty of a serious violation of the Constitution
or the law or who is guilty of serious misconduct should continue
in
office as President.  However, the reason why this is so is the
way that the first part of section 89 is formulated.
[102]
Section 89 says that “the National Assembly . . . may
remove a President from office”.  The use of the word
“may”
in that provision suggests that it is permissive.
Another requirement in section 89 is that the National Assembly must
adopt
a resolution which is supported by at least a two thirds
majority of the members of the National Assembly.  If, at least,
one of the three grounds is present and the National Assembly
adopts a resolution removing a President from office and that

resolution is supported by two thirds of the members of the National
Assembly, the President is removed from office.  If,
however,
the motion fails to get the support of two thirds of the members of
the National Assembly, that President is not removed
and continues in
office.
[103]
Before the National Assembly may vote on a motion for the
removal of a President in terms of section 89, the National Assembly
must
satisfy itself that at least one of the three grounds in section
89 exists.  If the National Assembly were to pass a resolution

with the support of two thirds of the members of the National
Assembly removing a President from office under section 89 in the

absence of any of the grounds listed in section 89, that resolution
would be inconsistent with the Constitution and invalid.
It
could be set aside on review.
[104]
When a member of the National Assembly believes that the
President may have committed a serious violation of the Constitution
or
of the law or may have committed serious misconduct or is unable
to perform the duties of office as envisaged in section 89,
he
or she is not confined to the section 89 procedure if he or she wants
to achieve the vacation of office by the President.
He or she
can invoke the section 89 process which has very onerous requirements
or he or she can take the attitude that by virtue
of his or her
belief or suspicion that the President may be guilty of one or more
of the types of conduct listed in section 89,
he or she has lost
confidence in the President and the majority of the members of the
National Assembly have also lost confidence
in the President.
He or she can then initiate a vote of no confidence in the President
and, if that motion is supported by
a simple majority of the members
of the National Assembly, the President would be obliged to resign.
Proof that the President
is guilty of such misconduct would not be
required.  All that would be required is the passing of a vote
of no confidence
in the President by a simple majority.
Section 102(2) sets the bar very low whereas section 89
sets it extremely
high.
[105]
Under section 89, that the President is guilty of the conduct
listed therein must objectively exist.  A two thirds majority
of
the members of the National Assembly needs to be persuaded that that
is so.  Even when that has been shown, it does not
necessarily
follow that the President is removed.  Section 89 says that he
or she “may” be removed.
Does section 89 always require that
there be a committee that will conduct an inquiry in terms of section
89?
[106]
In my view, although in many, if not most, cases it will be
necessary or convenient that a Committee conducts an inquiry into
whether
there is a serious violation of the Constitution or whether
the President has committed serious misconduct or whether there is
inability to perform the functions of his or her office, there may be
cases where no such committee may be necessary.  This
will be
where all the material facts are common cause among all parties
including the President.  In such a case all that
the National
Assembly would be asked to do would be to draw their conclusions or
inferences from the common cause facts and decide
whether one or more
of the grounds listed in section 89 is or are present.  If none
is present, that is the end of the matter
and the President cannot be
removed.  If however, one or more such ground or grounds is or
are present, then a motion for
the removal of the President may be
moved, deliberated and voted upon.
[107]
Another scenario where no Committee may be necessary would be
where, to take an extreme example, the President, angry at the
attacks
on him or her by members of the Opposition, leaves the podium
in the National Assembly and physically attacks a member of the
Opposition
inside the National Assembly and in full view of members
of the National Assembly and that member subsequently dies as a
result
of that assault.  In that case there would be no facts
for the National Assembly to inquire into and, therefore, no need for

a Committee.  The facts of the case would be fully well-known to
the members of the National Assembly.  In such a case
the
National Assembly would simply be asked to draw its conclusions on
whether the President was guilty of a serious violation
of the
Constitution or the law or of serious misconduct.  In fact, in
that scenario, there would be no dispute that the President
is guilty
of a serious violation of the law.  What would remain is whether
a resolution removing him in terms of section 89
should be passed.
It would not follow that, just because the President is guilty of a
serious violation of the Constitution
or the law or serious
misconduct, he is automatically removed from office.  It would
depend on the vote.
[108]
Here is why in the present case there was no need for a
fact-finding investigation or inquiry before the members of the
National
Assembly could vote on the motion of 5 April 2016 for the
removal of the President.  In
EFF 1
this Court made the
finding or reached the conclusion that the President’s conduct
in failing to implement the Public Protector’s
remedial action
was unlawful and inconsistent with the Constitution.  This Court
thus concluded that the President had in
that way violated the
Constitution.  This finding or conclusion became
res judicata
among all the parties to that case.  Those were the EFF, UDM,
COPE, DA, the National Assembly and President Jacob Zuma.

All those parties were bound by that finding or conclusion of this
Court.  They could not seek to change it by any means.

Furthermore, by virtue of section 165(5) of the Constitution, that
decision of this Court bound all those parties.  Section
165(5)
reads: “(5)
An order or decision issued by a Court binds all
persons to whom and organs of state to which it applies
.”
[109]
In fact one of the orders issued by this Court in
EFF 1
was a declaratory order that the conduct of the President in failing
to implement the Public Protector’s remedial action
was
inconsistent with the Constitution.  That order appears in
paragraph 4 of the order of this Court in that case.
That meant
that that conduct on the part of the President violated the
Constitution.  On 1 April 2016 the President addressed
the
nation and said that he accepted the judgment of this Court
unreservedly and he respected it.  He urged everybody to accept

and respect the judgment.  This means that the President also
accepted the conclusions that this Court had reached in regard
to his
conduct.  That includes the conclusion that he had violated the
Constitution.  In fact he said that he had not
deliberately
violated the Constitution.
[110]
Furthermore, the question whether or not the President’s
conduct was consistent with the Constitution or whether or not he
had
violated the Constitution by failing to implement the Public
Protector’s remedial action was an issue in respect of which

this Court had the final say in terms of section 167(5) of the
Constitution.  Section 167(5) reads in relevant parts:
“The
Constitutional Court makes the final decision whether . . . conduct
of the President is constitutional…”
[111]
Once this Court had pronounced that the President had violated
the Constitution, nobody – not least the National Assembly or

any committee or body created by it – could conduct an
investigation whether, indeed, that was so.  No such committee

could alter that conclusion or second-guess it.  Therefore, that
finding or conclusion or order stood.  We held in
EFF 1
that the National Assembly and the President could not second-guess
the Public Protector’s remedial action.  In this
case we
cannot make a pronouncement the effect of which is that a decision of
this Court could or can be second-guessed by the
National Assembly or
any committee or structure created by it.  Therefore, there is
no room for the proposition that some
fact finding process was
required to establish whether the President had violated the
Constitution by failing to implement
the Public Protector’s
remedial action.
[112]
When this Court handed down its judgment on 31 March 2016 in
EFF 1
, its conclusion that the President had violated the
Constitution by failing to implement the Public Protector’s
remedial
action was final.  The result was that by the time the
Leader of the Opposition gave notice of the motion for the removal of

the President on 31 March 2016 – which he moved on 5 April 2016
– it had already been established that the President
had
committed a violation of the Constitution.  When the Leader of
the Opposition moved the motion for the removal of the
President on 5
April 2016, the President had already announced his acceptance of the
judgment of this Court and, with that, its
conclusion that he had
violated the Constitution.
[113]
What remained in terms of satisfying the requirements of
section 89 was for the National Assembly to take a view on whether
the
violation was serious and, if so, whether the President should be
removed from office.  The question whether the violation
of the
Constitution was serious is not a question of fact that needed to be
investigated.  Like the question whether particular
conduct is
fair, the question whether a violation of the Constitution is serious
is a question of a value judgement.
[41]
The National Assembly must pass the value judgement.  Therefore,
it, too, did not require a fact-finding investigation
by any
committee or body.
[114]
In my view, a reading of the motion of 5 April 2016 reveals
that it was intended that the National Assembly should make its
conclusion
about whether the President’s violation of the
Constitution was serious on the basis of the conclusions reached by
this Court
against him in its judgment.  It seems to me that
this is the view that was taken by the Leader of the Opposition in
initiating
that motion.  Given the above, the Leader of the
Opposition was perfectly entitled to take that view.  He was
entitled
to say: “simply on these findings or conclusions of
the highest Court in the land, the National Assembly must conclude
whether
the violation of the Constitution by the President was
serious, and, if it was, decide whether to remove him from office in
terms
of section 89 and I, as the Leader of the Opposition say that
the violation is serious and the National Assembly should remove the

President from office”.  The President would have been
aware of the motion for his removal and, if he felt that he needed
to
place before the National Assembly any facts or representations, he
would have asked for that opportunity.  He probably
felt that
the National Assembly was aware of his side of the story as he had
been party to the proceedings in this Court.
After all he had
said that he accepted the judgment unreservedly.
[115]
The question that arises, therefore, is: what was there to be
investigated by any Committee if the motion was based on nothing else

but the findings or conclusions of this Court against the President?
In my view, nothing.  Therefore, the motion moved
by the Leader
of the Opposition on 5 April 2016 for the removal of the
President for failing to implement the Public Protector’s

remedial action was in order.  Through it, the National Assembly
did hold the President accountable for failing to implement
the
Public Protector’s remedial action.
[116]
One of the orders made by the second judgment directs the
National Assembly to initiate a process under section 89(1).
The
aim of the section 89 process is for the National Assembly to
hold the President accountable for his failure to implement the
Public
Protector’s remedial action after 31 March 2016.
That means that, on the second judgment’s approach, there must

be a committee established to conduct a fact finding
investigation or inquiry whether the President committed a serious
violation
of the Constitution in failing to implement the Public
Protector’s remedial action.  That Committee would make
its recommendations
to the National Assembly and the National
Assembly would decide whether to accept or rejects its findings or
recommendations including
on the question whether the President
committed a serious violation of the Constitution in failing to
implement the Public Protector’s
remedial action.
[117]
There is another difficulty with this proposition.  The
difficulty is that through the motion of 5 April 2016 the DA already

pronounced that the President had seriously violated the Constitution
and it condemned the President for that.  That is in
the wording
of that motion.  It is common cause that the EFF, UDM and COPE
argued for the adoption of that motion by the National
Assembly
during the debate and voted in support thereof.  The second
judgment also makes the point that the applicant also
supported that
motion.  That means that all those parties have already passed
judgment that the President’s violation
of the Constitution was
serious.  They were within their rights to reach that
conclusion.  Whether that conclusion was
right or wrong is not
for this Court to say.  That being the case, how can the same
parties seek an investigation by a committee
which must make
recommendations to the National Assembly and, thus, to them, on an
issue on which they have already passed judgement?
In this
regard it must be remembered that the Constitution gives the
responsibility of deciding whether a President has committed
a
serious violation of the Constitution to the National Assembly.
So, if any committee conducts any inquiry or investigation,
it is not
its function to decide that issue.  It must make a
recommendation to the National Assembly which, in turn,
makes
the final decision.
[118]
It seems to me that it is not competent for the National
Assembly to establish a committee that will make a recommendation to
it
on whether the President’s violation of the Constitution was
serious when, as large a section of the National Assembly as
is
represented by members of the DA, EFF, UDM and COPE has passed
judgement and said that the violation was serious.  In fact,

even in these proceedings the applicants have repeated their view
that the President’s violations of the Constitution are

serious.  In paragraph 51 of the applicants’ founding
affidavit, the deponent said on behalf of the applicants: “in

particular, [the President] has not been asked to explain his
violations of the Constitution
which are self-evidently of a
serious nature
”.
[119]
The applicants are not the only members of the National
Assembly who are disqualified from passing judgement on the issue.

Also, those members of the National Assembly who opposed the
motion of 5 April 2016 are disqualified from making any decisions
in
regard to the same issue because they, too, already passed judgement
in the President’s favour when they opposed that
motion and
voted against it.  Therefore the National Assembly cannot deal
with the same issue that was covered by the motion
of 5 April 2016.
If the committee that the second judgment orders should investigate
whether the President committed a serious
violation of the
Constitution reports to the National Assembly it has found that he
did, the National Assembly, consisting
of its members who
participated in the deliberations and voting in regard to the motion
of 5 April 2016, will be required to pass
judgement on an issue in
regard to which it has already passed judgement.  It cannot be a
fair process nor can it be constitutional
that a body that has
already passed its verdict on a case be required to again sit in
judgement on the same issue involving the
same person.  The
suggestion or proposition that such a process should be embarked upon
should never come from this Court,
because it simply does not accord
with the notion of justice contemplated in our Constitution.
[120]
The view that it is not competent for the National Assembly to
make the decisions required by section 89 of the Constitution in
respect of the President’s failure to implement the Public
Protector’s remedial action does not mean that it is not

competent for the National Assembly to make any decisions required by
section 89 against the President at all.  Of course
it would be
competent for the National Assembly to make decisions required
by section 89 against the President in respect
of any matter that
falls outside of the motion of 5 April 2016.  Indeed, if an
issue arises in respect of which there should
be a fact-finding
investigation under section 89 because the facts are not common cause
in respect of any conduct of the President,
the National Assembly
would be free to establish a committee that would investigate such an
issue or matter if it falls outside
the scope of the motion of
5 April 2016.
[121]
In any event, in my view the mechanism of the motion of no
confidence under section 102 is always available to the National
Assembly
and it may be resorted to whenever the National Assembly
feels that it has lost confidence in a President or his or her
Executive.
Unlike the requirements of the section 89 process,
the requirements of the motion of no confidence under section 102 are
easier
to satisfy.  The section 89 process can be challenged on
a number of grounds in court whereas it would be difficult to
challenge
the outcome of the vote of the motion of no confidence
under section 102 in court as long as the motion was supported by at
least
a simple majority of the members of the National Assembly.
Therefore, in my view even where the National Assembly suspects
that
a President may be guilty of a serious violation of the Constitution
or the law or of serious misconduct or of inability to
perform the
functions of the office of the President, it may use section 102 as
long as it has lost confidence in the President.
In that event
it will not be necessary to prove that the President actually
committed or is actually guilty of any one or more
types of
unacceptable conduct listed in section 89 nor will it be necessary to
secure the support of two thirds of the members
of the National
Assembly for the President to vacate his or her office.
Who may cause
the National Assembly to take the steps required for section 89?
[122]
The applicants say that they brought this application in order
to compel the Speaker and/or the National Assembly to take the steps

necessary to hold the President accountable and in particular to take
the steps required for the section 89 procedure.  The
question
that arises is: why must they come to Court in order to get the
National Assembly to take those steps?  Does the
Speaker have
exclusive jurisdiction to get the National Assembly to take those
steps or is this something that the applicants can
themselves do
through their members who are members of the National Assembly?
[123]
Rule 119 of the Rules of the National Assembly allows every
member of the National Assembly to propose a motion.  It reads:

“a member may propose a subject for discussion, on a draft
resolution for approval as a resolution of the House, with or
without
debate”.  This rule makes it crystal clear that any member
of the National Assembly may propose “
a draft
resolution for approval as a resolution of the House
.”
Section 89 of the Constitution envisages that for the National
Assembly to remove a President from his or her office,
it i.e. the
National Assembly must pass a resolution supported by a two thirds
majority of the members of the National Assembly.
The
resolution referred to in section 89 is a resolution contemplated in
this rule.  Rule 124(1) reads:
“Members of
each party are entitled to give notices of motion when recognised by
the presiding officer for that purpose.”
[124]
In the applicants’ founding affidavit the EFF, UDM and
COPE have suggested through the deponent to that affidavit that at
least an ad hoc Committee of the National Assembly should be
established “to investigate the President’s conduct in

light of the judgment of [this Court] (including whether he misled
Parliament)”.  If the three parties wanted an ad
hoc
Committee of the National Assembly to be established to undertake
that task for the purposes of the section 89 procedure, there
was no
need for them to come to Court.  This is so because such a
Committee may be established by the National Assembly –
a body
in which they have members.  All that was needed to achieve that
was that any member of any one of the three applicants
in the
National Assembly move a motion for the establishment of such a
Committee and specify the task of the Committee in
the motion and
achieve a
two thirds majority
required support among the
members of the National Assembly.  The ad hoc Committee
would then undertake the task of establishing
whether at least one of
the grounds listed in section 89 is present and report back to the
National Assembly.  The National
Assembly would then decide
whether it removes the President or not.  If it decides to
remove the President, the President
will be removed from office.
If it decides not to remove him, he will continue in office.  I
have already quoted the
relevant parts of Part 15 of the Rules of the
National Assembly which deal with ad hoc Committees.  There is
no need to repeat
that exercise.
[125]
There is no suggestion by the applicants that, if they had
moved a motion for the establishment of an ad hoc Committee for the
purposes
of a section 89 procedure, anybody including the Speaker
would have done anything unlawful that would have frustrated those
efforts.
The Speaker has made a similar point in her
affidavit.  In fact the applicants are aware that the DA has
previously moved
a motion in the National Assembly for the
establishment of an ad hoc Committee for the section 89
procedure.  That motion
related to the departure of President
Al-Bashir from South Africa after a court had granted an order
interdicting his departure.
[126]
Some correspondence was exchanged between the Speaker and the
Chief Whip of the EFF in which the EFF asked the Speaker to establish

a disciplinary panel which would conduct a disciplinary inquiry into
the President’s conduct and the Speaker refused to do
so.
It is not necessary to say much about that correspondence because, in
my view, the EFF was asking the Speaker to do something
that fell
outside the rules of the National Assembly but, in any event, they
had no need to ask the Speaker.  What they could
have and should
have done is to move a motion for the establishment of an ad hoc
Committee which would inquire into the existence
or non-existence of
any one or more of the section 89 grounds in the President’s
conduct and seek the support of at least
two thirds of the members of
the National Assembly.
[127]
I have read the judgments prepared by the Chief Justice (third
judgment) as well as the one prepared by Froneman J (fourth
judgment).
The third judgment concurs in this judgment.
The fourth judgment points out that there might not be much
difference between
my understanding of section 89 and the
understanding of that provision as reflected in the second judgment.
While I agree
that this judgment and the second judgment reflect some
common understanding of certain features of section 89, it seems to
me
that the differences that exist between the two judgments in
regard to that section are quite significant and may well be
fundamental.
[128]
In the result I would dismiss the application and make no
order as to costs.
JAFTA J (Cameron J, Froneman J,
Kathree-Setiloane AJ, Kollapen AJ, Mhlantla J, Theron J concurring):
[129]
I have had the benefit of reading the judgment prepared by the
Deputy Chief Justice (first judgment).  I agree that

this matter falls within the exclusive jurisdiction of this Court.
This is because the claims raised by the applicants concern
a failure
by the National Assembly to fulfil its obligations under various
provisions of the Constitution.  In terms of section
167(4) of
the Constitution only this Court may decide that Parliament has
failed to fulfil a constitutional obligation.
[42]
[130]
I also agree with the first judgment that two main issues
arise.  The first is whether the Assembly has failed to put in
place
mechanisms and processes for holding the President accountable
in terms of section 89 of the Constitution.  Although the relief

set out in the notice of motion is inelegantly formulated, when read
in its entirety, it becomes apparent that the mechanisms and

processes the applicants claim that the Assembly failed to put in
place relate to section 89(1) of the Constitution.  In prayer
5,
the applicants seek an order directing the Assembly to put in place
mechanisms and processes for determining whether the President’s

alleged violations of the Constitution and other conduct meet the
requirements of section 89(1).  And in prayer 6 they seek
an
order directing the Assembly to establish a committee or an
appropriate mechanism to investigate whether grounds for removing
the
President from office in terms of section 89 exist.
[131]
The second issue is whether the Assembly has failed to hold
the President to account in that it failed to scrutinise the
violation
of the Constitution by the President.  This was said
to have arisen from the President’s failure to implement the
Public Protector’s
report of 19 March 2014.
[132]
However, I am unable to agree with the conclusion reached by
the first judgment on both issues and the order it proposes to

the extent that the application should be dismissed.  In my
view, the application must succeed on both issues.  But,
before
I address these issues, it is necessary to outline briefly the
constitutional scheme and the factual background.
Constitutional framework
[133]
Our Constitution, like many others, devolves power among the
three arms of the State in all spheres.  To prevent one arm or

sphere from exercising powers which belong to other arms, the
Constitution adopted the principle of separation of powers.
[43]
In order to prevent the abuse of power by those who hold office in
the three arms, checks and balances were put in place.
With
regard to the President and the National Executive, these checks
and balances are contained in Chapter 5 of the
Constitution.
This chapter consists of 20 sections.  The chapter is devoted to
matters including election of the President;
an outline of his or her
powers; his or her term of office; the establishment of Cabinet and
an outline of its powers and functions;
and the removal of the
President and Cabinet from office.
[134]
As to the removal of the President from office, two provisions
are relevant.  These are sections 89 and 102.  This Court

has described them in the recent past as tools for holding the
President to account.
[44]
Cabinet and the President hold office for the duration of their term
if they continue to enjoy the confidence of the Assembly.

Should Cabinet lose the Assembly’s confidence for whatever
reason and a motion of no confidence, supported by a simple majority

of its members be passed, Cabinet must vacate office.
[45]
The President may reconstitute a new Cabinet.  But if a motion
of no confidence is passed against the President, then
the President
and the entire Cabinet must resign.
[135]
What is apparent from the language of section 102 is that both
the President and Cabinet need the support of the majority of members

of the Assembly to remain in office.  Absent that support they
run the risk of being removed through a motion of no confidence.

Although other members of Cabinet are appointed by the President,
they too are subject to the Assembly’s power of removal
from
office.
[136]
The other provision that regulates the President’s
removal from office is section 89 with which we are concerned in
this
matter.  A removal effected in terms of this provision must
be supported by a vote of at least two thirds of members of the

Assembly and that removal must be based on one or more of the grounds
listed in section 89(1).  If the President is removed
from
office on account of inability to perform the functions of office, he
or she does not lose benefits.  But if he or she
is removed on
the other grounds, he or she may lose benefits.
[46]
[137]
It is apparent from both sections 89 and 102 that members of
the Assembly wield enormous power.  They may remove the
President
and Cabinet from 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 conditions 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.
[138]
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.
[139]
To enable members of the Assembly to exercise its powers
without outside influence, the Constitution insulates them from
repercussions
from any quarter.
[47]
Section 58 of the Constitution guarantees freedom of speech in the
Assembly which is subject only to its rules and orders.
Not
even legislation may limit free speech in the Assembly.
[48]
Members are immune from civil and criminal liability, arrest or
imprisonment for performing their functions in the Assembly.

Without this protection some of the functions of the Assembly could
easily be frustrated by those who would be adversely affected
by the
Assembly’s decisions.
[140]
In
UDM
the Chief Justice observed:
“The
frustration or disappointment of the losing presidential hopeful and
his or her supporters could conceivably have a wide
range of
prejudicial consequences for Members who are known to have
contributed to the loss.  To allow Members of the National

Assembly to vote with their conscience and choose who they truly
believe to be the best presidential material for our country,
without
any fear of reprisals, a secret ballot has been identified as
the best voting mechanism.
Conversely, a
Member of Parliament could be exposed to a range of reasonably
foreseeable prejudicial consequences when called upon
to pronounce
through a vote on the President’s accountability or continued
suitability for the highest office.”
[49]
[141]
Since the Assembly is elected “to represent the people
and to ensure government by the people under the Constitution”,

the interests served and advanced by the exercise of its powers must
be the collective interests of the people it represents.
[50]
The powers of the Assembly must primarily be exercised to promote
only the people’s interests and the institutional
objectives of
the Assembly.
[142]
The Assembly “ensures government by the people” by
scrutinising and overseeing executive action.  It also achieves

this purpose by choosing the President and providing a national forum
for public consideration of issues.  This underscores
the role
played by the Assembly as the people’s representative.
[143]
Although the Assembly plays no role in the appointment of
members of the Cabinet, it has been empowered to remove them from
office.
In doing so the Assembly may target Cabinet members
only or together with the President.  It is the Assembly alone
which is
the repository of these powers of removal and which may be
exercised in the interests of the people it represents.  This
explains
the low threshold for exercising the section 102 power.
Although the Constitution imposes no condition for the exercise of

that power, it is implicit from the constitutional scheme that
members of the Assembly may lose confidence in Cabinet or the
President
if their conduct is at variance with the people’s or
national interest.
[144]
The fact that members of the Assembly assume office through
nomination by political parties ought to have a limited influence on

how they exercise the institutional power of the Assembly.
Where the interests of the political parties are inconsistent
with
the Assembly’s objectives, members must exercise the Assembly’s
power for the achievement of the Assembly’s
objectives.
For example, members may not frustrate the realisation of ensuring a
government by the people if its attainment
would harm their political
party.  If they were to do so, they would be using the
institutional power of the Assembly for
a purpose other than the one
for which the power was conferred.  This would be inconsistent
with the Constitution.
[51]
[145]
Political parties themselves derive their existence and power
from the Constitution, first and foremost.
[52]
Section 19 affords every citizen the right to form a political party
and the right to participate in the activities of a
party of his or
her choice, including the right to campaign for a political party or
its causes.  But all these rights must
be exercised in a manner
that is consistent with other provisions of the Constitution.
They cannot be invoked to undermine
the powers and functions of the
Assembly.  This is the backdrop against which the claims made by
the applicants must be assessed.
Factual background
[146]
Following complaints lodged by members of the public and a
member of Parliament, the Public Protector undertook an extensive
investigation
into the construction of certain improvements at the
President’s private residence in Nkandla.  Upon completion
of her
investigation, the Public Protector made adverse findings
against the President.  Flowing from those findings, she
declared
the remedial action which the President was required to
carry out.
[147]
But the President failed to comply with the Public Protector’s
remedial action.  Various actions were undertaken by the

President in response to the Public Protector’s findings and
recommendations.  These included an instruction to the

Minister of Police to investigate whether the improvements
effected at his residence included non security features,

as the Public Protector had found, and, if so, the amount which
constituted a reasonable percentage to be paid by the President.

The Minister produced a report that exonerated the President from any
liability.
[148]
The Assembly also got involved after the Public Protector had
submitted her report to the Speaker.  The Assembly set up two
ad
hoc committees to examine all reports on the matter.  The Public
Protector’s report and the one by the Minister of
Police were
among those that were considered by the committees.  These
committees preferred the Minister’s report which
exempted the
President from liability over the Public Protector’s report,
and presented their own report on the matter to
the Assembly.
[149]
For its part, the Assembly endorsed the committees’
report and absolved the President of all liability.
Consequently,
the President did not comply with the
Public Protector’s remedial action.  Unhappy with
this turn of events, the
EFF instituted an application in this Court
seeking declaratory relief.  This included an order declaring
that the President
had failed to fulfil a constitutional obligation;
a declaration that the Public Protector’s remedial action had a
legally
binding effect on the President; an order directing the
President to comply with the remedial action and a declaration to the
effect
that the Assembly too had breached a constitutional
obligation.  It was contended that the Assembly failed to hold
the President
to account as it was obliged by section 42(3) of the
Constitution.  It will be recalled that this provision obliges
the Assembly
to, among other duties, scrutinise and oversee executive
action.
[150]
Delivering judgment in
EFF 1
, this Court held with
regard to the Assembly:
“On a proper
construction of its constitutional obligations, the National Assembly
was duty-bound to hold the President accountable
by facilitating and
ensuring compliance with the decision of the Public Protector.
The exception would be where the findings
and remedial action are
challenged and set aside by a court, which was of course not done in
this case.  Like the President,
the National Assembly may,
relying for example on the High Court decision in
DA v SABC
,
have been genuinely led to believe that it was entitled to
second-guess the remedial action through its resolution absolving the

President of liability.  But, that still does not affect the
unlawfulness of its preferred course of action.
Second-guessing the
findings and remedial action does not lie in the mere fact of the
exculpatory reports of the Minister of Police
and the last Ad Hoc
Committee.  In principle, there may have been nothing wrong with
those ‘parallel’ processes.
But, there was
everything wrong with the National Assembly stepping into the shoes
of the Public Protector, by passing a resolution
that purported
effectively to nullify the findings made and remedial action taken by
the Public Protector and replacing them with
its own findings and
‘remedial action’.  This, the rule of law is dead
against.  It is another way of taking
the law into one’s
hands and thus constitutes self-help.
By passing that
resolution the National Assembly effectively flouted its obligations.
Neither the President nor the National
Assembly was entitled to
respond to the binding remedial action taken by the Public Protector
as if it is of no force or effect
or has been set aside through a
proper judicial process.  The ineluctable conclusion is
therefore, that the National Assembly’s
resolution based on the
Minister’s findings exonerating the President from liability is
inconsistent with the Constitution
and unlawful.”
[53]
[151]
It is apparent from this statement that the Court concluded
that the Assembly in exonerating the President from liability had
acted
in a manner that was unlawful and inconsistent with the
Constitution.  This was a serious indictment on the Assembly
which,
as set out above, plays a pivotal role in our democratic
order.  Without it playing its role properly, the objective of
government
by the people may not be realised.
[152]
For his part, the President conceded on the eve of the hearing
of that case that the Public Protector’s remedial action was

binding and submitted to the Court a draft order that was consistent
with the Public Protector’s remedial action.
[54]
The Court went on to hold:
“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.
Consistent with this constitutional
injunction, an order will thus be
made that the President’s failure to comply with the remedial
action taken against him
by the Public Protector is inconsistent
with his obligations to uphold, defend and respect the Constitution
as the supreme
law of the Republic; to comply with the remedial
action taken by the Public Protector; and the duty to assist and
protect the office
of the Public Protector to ensure its
independence, impartiality, dignity and effectiveness.
Similarly, the failure by the National Assembly to hold the President
accountable by ensuring that he complies with the remedial
action
taken against him, is inconsistent with its obligations to scrutinise
and oversee executive action and to maintain oversight
of the
exercise of executive powers by the President.  And in
particular, to give urgent attention to or intervene by facilitating

his compliance with the remedial action.”
[55]
[153]
In the result the Court issued an order in these terms:
“4.
The failure by the President to comply with the remedial action taken
against him,
by the Public Protector in her report of 19 March 2014,
is inconsistent with section 83(b) of the Constitution read with
sections 181(3)
and 182(1)(c) of the Constitution and is
invalid.
. . .
10.
The resolution passed by the National Assembly absolving the
President from compliance with
the remedial action taken by the
Public Protector in terms of section 182(1)(c) of the
Constitution is inconsistent with
sections 42(3), 55(2)(a) and (b)
and 181(3) of the Constitution, is invalid and is set aside.”
[56]
[154]
The complaint in the current proceedings is that the Assembly
has failed to hold the President to account in terms of section 89(1)

of the Constitution.  This complaint was formulated in these
words:
“Some six
months after the Constitutional Court delivered its judgment, the
National Assembly remains silent.  The
President has not
been held to account.  In particular, he has not been asked to
explain his violations of the Constitution,
which are self-evidently
of a serious nature.  He has also not been taken to task in
relation to the statements he made to
Parliament before the judgment
of the Constitutional Court where he sought to falsely justify
himself by misrepresenting the findings
and report of the Public
Protector and by the inaccurate portrayal of the role played by the
state in the funding of the upgrades
to his home.”
[155]
In elaboration of this claim it was asserted:
“The
applicants submit that there is a duty imposed on Parliament by the
various sections of the Constitution mentioned in
the notice of
application to scrutinise the conduct of the President and to require
him to account for his well-established violations
of the
Constitution. . . .  The National Assembly is under a duty to
consider the numerous violations by the President and
in particular
to take a view as to the seriousness of the violations by the
President and whether any sanction is necessary.
The President also
violated the ethical codes of Parliament.  This alone
constitutes serious misconduct and a violation of
the law, both
impeachable offences.”
[156]
With regard to the alleged failure by the Assembly to put in
place mechanisms to hold the President accountable, the applicants
aver:
“Section
55(2) requires the National Assembly to provide mechanisms for
accountability and oversight.  Despite having
a host of
potential mechanisms available, the Speaker and the National Assembly
have failed to provide any.  For example,
section 89(1) of the
Constitution empowers the National Assembly to remove the President
on the grounds of a serious violation
of the Constitution, or for
serious misconduct.  Doing so requires a two thirds majority of
the National Assembly, but
it also requires a prior assessment
of the severity of the President’s misconduct.”
[157]
The DA, which was allowed to intervene as a party in these
proceedings, pleaded the second issue thus:
“9
The essence of the DA’s submissions is that the National
Assembly has not
only breached its constitutional duties by
failing
to launch
impeachment investigations, but it has also breached
its constitutional duties by
failing to create effective
mechanisms
to allow members of the National Assembly to initiate
impeachment investigations and hearings.
9.1       As the applicants have
correctly submitted, impeachment processes under section 89 of the

Constitution necessarily require an investigation, to determine
whether there are grounds for impeachment, and a fair hearing to

allow the President to respond to charges.
9.2       At present, the National
Assembly has failed to create any legislation or rules to govern
the
section 89 impeachment process, including mechanisms to initiate
impeachment investigations and hearings.
9.3
Impeachment proceedings are inherently urgent and controversial
matters that must be commenced
and completed with all appropriate
haste.  In the absence of clear impeachment procedures, set out
in advance of actual cases,
impeachment proceedings are likely to be
delayed or stymied by disagreements within the National Assembly over
the proper procedure
for conducting impeachment investigations and
hearings.  Impeachment procedures devised in the heat of the
moment are also
unlikely to be fair or objective.”
[158]
In the supplementary answering affidavit deposed to by the
Acting Speaker, the allegation that the Assembly has not put in place

“legislation or rules to govern the section 89 impeachment
powers, including mechanisms to initiate impeachment investigations

and hearings” was not denied.  Instead the Acting Speaker
averred:
“It is
sufficient for [the Assembly] to ensure that it has mechanisms in
place – in its Rules and Orders – to
enable the
fulfilment of the oversight function in section 89(1) of the
Constitution, bearing in mind also that there are
other oversight
mechanisms other than section 89(1) of the Constitution.  The
Constitution does not require that a step to
remove the President
under section 89(1) of the Constitution must succeed in order for
[the Assembly] to have fulfilled its constitutional
obligations.”
[159]
The Acting Speaker asserted that an
impeachment process may be instituted in terms of rule 85.
[57]
This rule prohibits members of the Assembly from directly attacking
the integrity and dignity of other members during debates
in the
National Assembly.  It allows for improper and unethical
conduct on the part of members to be raised by way of
a substantive
motion.  This prohibition also protects the President and
members of Cabinet who are not members of the Assembly.
The
Acting Speaker went on to state:
“Since a
motion in terms of section 89(1) would likely bring wrong-doing on
the part of the President to the attention of
[the Assembly], it
would need to comply with Rule 85(2).  To my knowledge,
this is understood by all the political parties
in [the Assembly],
including those represented in these proceedings.”
[160]
However, it is apparent that rule 85(2) does not regulate the
impeachment process.  The rule was designed to govern improper

and unethical behaviour by members of the Assembly.  Although it
also shields the President and members of the Cabinet from
verbal
abuse during debates in the assembly, the objective of the rule is
not the serious misconduct envisaged in section 89(1)
of the
Constitution.  The rule does not refer at all to the other
grounds listed in that section, upon which the President
may be
impeached.
[161]
What is more, under the rule 85 procedure alluded to by the
Acting Speaker, a motion calling for impeachment of the President
would
be subject to the generosity of the Speaker.  This is how
the Acting Speaker put this issue:
“Should a
member of [the Assembly] table a substantive motion calling for the
removal of the President and the Speaker is
of the view that the
allegations warrant the attention of [the Assembly], she must refer
it to [the Assembly] for consideration.
She has done so in all
past instances where the President’s removal was sought.
There is no basis to suggest that she
may not do so in future.”
[162]
What emerges from this statement by the Acting Speaker is the
fact that motions for removal of the President from office were
addressed
in terms of rule 85.  What is surprising though
is the absence of an explanation for the Speaker’s response to
the EFF request, which did not mention this process.  It will be
recalled that the Speaker rejected the request on the ground
that the
rules do not provide for it.  She did not point out to the EFF
that they needed to submit a substantive motion in
terms of rule 85.
Of course, one accepts that technically the Speaker’s response
was correct because what was requested
by the EFF fell outside what
was provided for in the rules.  But, as an impartial officer who
had the duty to “ensure
that the National Assembly
provides a national forum for public consideration of issues . . .
and scrutinises and oversees
executive action”,
[58]
the Speaker ought to have directed the EFF to follow rule 85 in terms
of which such matters were dealt with in the past.
[163]
In addition to the rule 85 process, the Acting Speaker pointed
out that the impeachment process could be dealt with in terms of rule

253 which provides for the establishment of ad hoc Committees.
However, the Acting Speaker’s affidavit on this point
reveals a
troubling confusion in the application of the rules.  He said:
“Significantly,
the initiator of the removal process may either request that the
matter be referred to an
ad hoc
committee for investigation or
may even recommend that it goes straight to [the Assembly] for
debate.  This is consistent
with the Constitution since it is
[the Assembly], acting collectively, that has the power to remove the
President under section 89(1)
of the Constitution, and the
ad
hoc
committee is to assist it.  Its composition and workings
will be controlled by [the Assembly] in terms of [the Assembly’s

Rules] and Orders.
Should
[the Assembly] agree that the matter be considered by a
committee, it may establish an
ad hoc
committee or refer the
matter to an existing committee.”
[164]
It is not clear whether on past occasions when the Assembly
dealt with impeachment processes in terms of rule 85, any
investigation
contemplated in section 89(1) of the Constitution
was ever undertaken.  It seems, on the Acting Speaker’s
opinion, that such an investigation depends on the choice of the
person who initiates the motion.  The initiator “may

request that the matter be referred to an ad hoc Committee for
investigation or may even recommend that it goes straight to
[the
Assembly] for debate”.  Where a request for establishing
an ad hoc Committee is made, the Assembly may still, according
to the
Acting Speaker, “refer the matter to an existing committee”.
But he does not tell us which of the existing
committees is mandated
to consider a request for impeachment.  Nor does he explain why
an ad hoc Committee may be established
in a case where there is an
existing committee with authority to consider an impeachment request.
[165]
In illustrating his appreciation of what section 89 requires,
the Acting Speaker concluded by stating:
“Given that
section 89(1)(a) and (b) of the Constitution uses the word ‘
serious
’,
the
ad hoc
committee’s recommendation to [the Assembly]
must take into account whether the breach of section 89(1)(a) or (b),
if any,
was serious enough to warrant the President’s removal
from office.”
[166]
But the Acting Speaker’s affidavit displays
non-compliance with the investigative process referred to above,
except in April
2014 when the Assembly established an ad hoc
Committee at the behest of the then Leader of the Opposition who
initiated proceedings
for the removal of the President from office in
terms of section 89(1) of the Constitution.  However, that
committee
ceased to exist before concluding its task, by reason of
the Assembly’s term coming to an end.
[167]
Another motion in terms of section 89(1) was tabled in the
Assembly by the Leader of the Opposition on 4 August 2015.  The
motion sought the removal of the President from office on the ground
that he “failed to have President Omar al-Bashir detained
when
he visited the country”.  No ad hoc Committee was
established to undertake an investigation on that occasion.
Nor
was the matter referred to an existing committee.  Instead, the
Assembly permitted a debate to take place that was followed
by
voting.  Although it is not clear from the Acting Speaker’s
affidavit, it may well be that this motion was processed
in terms of
rule 85(2) which he had said was applied in the past.
[168]
The third motion purportedly in terms of section 89(1) and
calling for the President’s removal was made by the Leader of
the
Opposition on 31 March 2016.  This motion made reference to
judgments of the Supreme Court of Appeal and this Court in
EFF
1
,
[59]
and the Public Protector’s report on the upgrades at the
President’s residence in Nkandla.  A debate on the motion

was held on 5 April 2016 and that debate was followed by a vote of
235 against the motion and 143 in favour.  Again, we are
not
told why the matter was not referred first to an ad hoc or
existing committee.  We can only surmise that it too was
dealt
with in terms of rule 85(2).
[169]
It is now convenient to consider the two issues that arise
here.  I propose to begin with whether the Assembly was obliged
to put in place mechanisms and procedures regulating an impeachment
process.  For the Assembly may be held to be in breach
if, in
the first place, it was under a duty to do so.
Duty to put mechanisms and procedures
in place
[170]
The determination of this issue requires us to interpret
section 89 of the Constitution.  This is so because section 57
empowers
the Assembly to make rules and orders, regulating the
general or ordinary business.
[60]
It is in terms of those rules and orders that the members’
right to freedom of speech, guaranteed by section 58, may
be
limited.  The Assembly’s rules must govern its normal
business “with due regard to representative and participatory

democracy, accountability, transparency and public involvement”.
[61]
Those general rules and orders must provide for the establishment,
composition, power, functions, procedures and duration
of
committees.  The rules must also secure participation of
minority parties in the Assembly’s proceedings.
[62]
[171]
As mentioned, in the current form the rules of the Assembly do
not cater specifically for impeachment proceedings envisaged in
section
89 of the Constitution.  The question whether this
provision requires its own special procedure depends mainly on the
interpretation
assigned to it.
Meaning of section 89
[172]
Section 89 provides:
“(1)      The National Assembly, by a
resolution adopted with a supporting vote of at least two
thirds of
its members, may remove the President from office only on the grounds
of—
(a)        a serious violation of
the Constitution or the law;
(b)
serious misconduct; or
(c)
inability to perform the functions of office.
(2)
Anyone who has been removed from the office of President in terms of
subsection (1)(a)
or (b) may not receive any benefits of that office,
and may not serve in any public office.”
[173]
This provision empowers the Assembly and the Assembly alone to
remove the President from office.  The drafters of our
Constitution
were alive to the fact that the need to remove a sitting
President from office may arise.  Hence section 89 allocates
that
power to the Assembly, presumably because it is the Assembly
that elects, from among its members, the President.  It is only

fitting that the same body should have the power to remove from
office the person it had elected.
[174]
But once the President is elected, he or she becomes the
leader of the entire nation.  He or she ceases to be a member of
the
Assembly and is obliged to assume office within five days from
the date of election.
[63]
Thus in
EFF 1
the Chief Justice described the President
in these terms:
“The
President is the head of state and head of the national executive.
His is indeed the highest calling to the highest
office in the land.
He is the first citizen of this country and occupies a position
indispensable for the effective governance
of our democratic
country.  Only upon him has the constitutional obligation to
uphold, defend and respect the Constitution
as the supreme law of the
Republic been expressly imposed.  The promotion of national
unity and reconciliation falls squarely
on his shoulders.  As
does the maintenance of orderliness, peace, stability and devotion to
the well-being of the Republic
and all of its people.  Whoever
and whatever poses a threat to our sovereignty, peace and prosperity
he must fight.  To
him is the executive authority of the entire
Republic primarily entrusted.  He initiates and gives the final
stamp of approval
to all national legislation.  And almost all
the key role players in the realisation of our constitutional vision
and the
aspirations of all our people are appointed and may
ultimately be removed by him.  Unsurprisingly, the nation pins
its hopes
on him to steer the country in the right direction and
accelerate our journey towards a peaceful, just and prosperous
destination,
that all other progress-driven nations strive towards on
a daily basis.  He is a constitutional being by design, a
national
pathfinder, the quintessential commander-in-chief of state
affairs and the personification of this nation’s constitutional

project.”
[64]
[175]
Consistent with the pivotal role played by the President in
our democratic order and bearing in mind the obligation imposed
singularly
on him or her to uphold, defend and respect the
Constitution as our supreme law, the drafters of the Constitution
sought to limit
the power given to the Assembly to impeach and remove
a President from office.  Although the Constitution does not use
the
word “impeach”, it is apparent that what section
89(1) authorises constitutes impeachment in other jurisdictions.

This was acknowledged by this Court in
Mazibuko.
[65]
[176]
The power to remove the President from office is available to
the Assembly only if one of the listed grounds is established.

One of those grounds is a serious violation of the Constitution or
the ordinary law.  What qualifies this ground is the word

serious.  The second ground is serious misconduct and the third
is inability to perform the functions of the office.
None of
these grounds is defined in the Constitution.
[177]
It is evident that the drafters left the details relating to
these grounds to the Assembly to spell out.  But the drafters
could not have contemplated that members of the Assembly would
individually have to determine what constitutes 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.
[178]
And since the determination of these matters falls within the
exclusive jurisdiction of the 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
misconduct and inability to perform the functions of the office.
The
Acting Speaker describes the first two grounds as exhibiting
wrong-doing on the part of the President.  I could not agree
more.  This is evident from the language of section 89(2) which
stipulates that a President removed from office on any of these
two
grounds may lose benefits.  Once more, it is left to the
Assembly to determine circumstances under which the President
removed
from office on one of those grounds may forfeit benefits.
[179]
For the impeachment process to commence, the Assembly must
have determined that one of the listed grounds exists.  This is
so because those grounds constitute conditions for the President’s
removal.  A removal of the President where none of
those grounds
is established would not be a removal contemplated in section 89(1).
Equally, a process for removal of
the President where none of those
grounds exists would amount to a process not authorised by the
section.
[180]
Therefore, any process for removing the President from office
must be preceded by a preliminary enquiry, during which the Assembly

determines that a listed ground exists.  The form which this
preliminary enquiry may take depends entirely upon the Assembly.

It may be an investigation or some other form of an inquiry.  It
is also up to the Assembly to decide whether the President
must be
afforded a hearing at the preliminary stage.
[181]
Since the power to remove is institutional, the Assembly must
decide and facilitate the initiation of the preliminary stage.

It may well be that each member of the Assembly has a right to
initiate the preliminary process.  Even so, the Assembly must

facilitate steps to be taken in this regard and a process to be
followed.  Not only as a preliminary stage but also at the
stage
of actual impeachment up to the final stage of voting on whether the
President should be removed from office, so as to determine
whether
the removal is supported by the necessary two thirds majority.
[182]
Without rules defining the entire process, it is impossible to
implement section 89.  The present facts, as set out in

detail in the Acting Speaker’s affidavit, confirm this point.
Some of those facts were referred to earlier.  It
would appear
that sometimes the Assembly treated an impeachment complaint as a
motion to be processed in terms of rule 85(2).
On another
occasion an ad hoc Committee was established but ceased to exist
before completing its task.  But notably, the
Acting Speaker
does not outline the procedure followed by that committee, in
carrying out its mandate.  However, the
Acting Speaker accepts
that if the ad hoc Committee route is followed, there may be an
investigation.
[183]
On this point the Acting Speaker said:
“The
[Assembly’s] Rules currently enable proceedings under section
89(1) to be initiated when a member of the [Assembly]
tables a
substantive motion requiring such an initiation of the proceedings in
which there may be a request for the establishment
of an
ad hoc
committee
inter alia
to gather relevant facts or to conduct an
inquiry or an investigation prior to the adoption of a resolution by
the [Assembly] as
envisaged in section 89(1) of the
Constitution.”
[184]
The proposition that the current rules regulate the section
89(1) proceedings was based on the Acting Speaker’s mistaken
belief
that rule 85(2) applies.  In this regard he said:
“[s]ince a motion in terms of section 89(1) would likely bring
wrong-doing
on the part of the President to the execution of the
[Assembly], it would need to comply with Rule 85(2).”  He
also
referred to rules 123, 124 and 126, which govern motions
generally.  I refer to these facts not for the purpose of
interpreting
section 89 but in order to show that the present rules
are not suitable for regulating a process required by section 89(1).
[185]
The process followed in construing the section did not take us
to uncharted waters.  A similar approach was followed in
Mazibuko
.
[66]
In that matter, this Court was confronted with the question whether
section 102 of the Constitution imposed an obligation
on the Assembly
to make rules that regulate specifically motions of no confidence
envisaged in that provision.  The section
does not expressly
impose the obligation in question.  It merely states that if the
Assembly, by a vote supported by a majority
of its members, passes a
motion of no confidence in the President, the President and members
of Cabinet must resign.
[186]
Writing for the majority in
Mazibuko
, Moseneke DCJ
held:
“The
Constitution requires that the Assembly must have a procedure or
process which would permit its members to deliberate
and vote on a
motion of no confidence in the President.  In order for members
of the Assembly to vote on a motion, the rules
of the Assembly must
permit a motion of no confidence in the President to be formulated,
brought to the notice of members of the
Assembly, tabled for
discussion and voted for in the Assembly.  The voting on a
motion is done by members of the Assembly
collectively.  However,
section 102(2) is silent on the source or origin of the motion of no
confidence.  Given the text
and purpose of the provision, in our
judgment, any member of the Assembly has the right to formulate and
request to have a motion
of no confidence serve before and voted for
in the Assembly.”
[67]
Ad hoc Committee
[187]
In opposing the claim that the Assembly failed to put in place
mechanisms for deciding impeachment proceedings, the Acting Speaker

also called in aid rule 253 which governs the establishment of ad hoc
Committees.  He said a member of the Assembly may request
that
an impeachment matter be referred to an ad hoc Committee
established in terms of the rule.  This rule, he continued,

requires the Assembly to “specify the task assigned to the
committee, which may include conducting an inquiry or investigation

and reporting or recommending to the [Assembly] on steps to be taken
pursuant to its findings”.  He then concluded:
“Given that
section 89(1)(a) and (b) of the Constitution uses the word ‘serious’,
the ad hoc committee’s
recommendation to the [Assembly] must
take into account whether the breach of section 89(1)(a) or (b), if
any, was serious enough
to warrant the President’s removal from
office.”
[188]
Significantly, the Acting Speaker does not tell us the
meaning assigned to “serious” by the Assembly.  Nor

does he say what would happen if each member of the ad hoc Committee
attaches a meaning to that crucial word which is different
from the
interpretation of other members.  All that he says is that the
committee’s recommendation will have to state
whether the
breach is serious enough to warrant the President’s removal.
[189]
On this approach, it is the initiator of the process who
determines whether the President has committed a serious misconduct
or
a serious violation of the Constitution or the law.  If the
initiator holds that opinion, he or she may request that an ad
hoc
Committee be established to investigate and recommend to the Assembly
that the President be removed from office.  This
process lacks a
sifting mechanism which would determine whether there is a case for
the President to answer.
[190]
But over and above that, the ad hoc Committee process does not
have a set procedure for the committee to follow when carrying out

its task.  More importantly, in terms of rule 255 a question
before an ad hoc Committee is decided by “agreement among
the
majority of the members present” unless the resolution
establishing the committee provides otherwise.
[68]
[191]
The other shortcoming of the ad hoc Committee system which
appears from the Acting Speaker’s affidavit is that in
committees,
including ad hoc Committees, “parties are entitled
to be represented in substantially the same proportion as the
proportion
in which they are represented in the Assembly, except
where the rules prescribe the composition of the committee or the
number
of members in the committee does not allow for all parties to
be represented.”
[192]
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.
[69]
If more than one party is represented, the representation mirrors
their representation in the Assembly.  The majority
party would
have majority representation.  This raises the risk of an
impeachment complaint not reaching the 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 ad
hoc Committee may prevent an impeachment process
from proceeding
beyond the committee, to shield a President who is their party
leader.  In recognition of the point that impeachment

proceedings are partisan, the Acting Speaker averred:
“The
initiation of such proceedings is inherently partisan, as the aim
from the outset is the removal of the President, who
will almost
always be a leader of a party represented in [the Assembly].”
[193]
In the context of section 102 of the Constitution, this Court
in
Mazibuko
rejected the proposition that the tabling of
motions of no confidence envisaged in that section, with only the
support of a majority
decision in a committee, was consistent with
the Constitution.  This Court said:
“A majority
decision of the programme committee on the scheduling of a motion of
no confidence could frustrate the vindication
of the right envisaged
in section 102(2).  This would be so because, again as in the
case of consensus requirement, it would
be within the discretion and
generosity of the majority within the programme committee whether a
motion of no confidence in the
President would ever see the light of
the day.”
[70]
[194]
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.  In
Mazibuko
this Court went further to
declare:
“To the
extent that the rules regulating the business of the programme do not
protect or advance or may frustrate the rights
of the applicant and
other members of the assembly in relation to the scheduling, debating
and voting on a motion of no confidence
as contemplated in
section 102(2), they are inconsistent with section 102(2)
and invalid to that extent.”
[71]
[195]
Here, the applicants did not seek that the rules be declared
invalid to the extent that they fail to provide for regulation of
impeachment
proceedings.  But the similarities between
Mazibuko
and this matter are remarkable.  That said, however,
section 102(2) with which the Court was concerned in
Mazibuko
does not require proof of any conditions before a motion of no
confidence is tabled, debated and voted on.  Here grounds for

impeachment must be established before the motion to remove the
President from office is debated and voted on.
[196]
In the result, I conclude that section 89(1) implicitly
imposes an obligation on the Assembly to make rules specially
tailored for
an impeachment process contemplated in that section.
And, I hold that the Assembly has in breach of section 89(1) of

the Constitution failed to make rules regulating the impeachment
process envisaged in that section.
Failure to hold the President
accountable
[197]
The complaint pertaining to this claim is that after this
Court had delivered its judgment in
EFF 1
on 31 March 2016,
the Assembly failed to take action against the President in terms of
section 89(1) of the Constitution.
It will be recalled that in
that matter this Court held that the President had violated the
Constitution by failing to uphold,
defend and respect it in two
respects.  First, by disregarding the remedial action taken
against him by the Public Protector.
Second, by failing “to
assist and protect the office of the Public Protector to ensure its
independence, impartiality, dignity
and effectiveness” by
complying with her remedial action.”
[72]
[198]
The applicants contend that these breaches constitute a
serious violation of the Constitution.  Furthermore, they assert
that
in her report the Public Protector had found that the President
had breached provisions of the Executive Members’ Ethics Act

and the Executive Ethics code as well as section 96 of the
Constitution.  They add to this an assertion that the President

has committed serious misconduct envisaged in section 89(1) of the
Constitution.  They conclude by stating that the Assembly
has
done nothing to hold the President to account.
[199]
While it is not accurate to say that the Assembly did nothing
to hold the President accountable since the delivery of this Court’s

judgment in
EFF 1
, the crucial question is whether
appropriate action has been taken against the President by the
Assembly, the only institution
mandated to do so.  It is true,
as pointed out in the first judgment, that questions were answered by
the President in the
Assembly and that in November 2016, a motion of
no confidence in terms of section 102(2) of the Constitution was
tabled against
the President in the Assembly.  That motion was
deliberated and voted upon.
[200]
But it is self-evident that both these steps were not actions
taken in terms of section 89(1).  That section does not require

the question and answer sessions.  Nor does it authorise the
tabling of a motion of no confidence against the President.

Such a motion may be tabled under section 102 of the Constitution and
for which the Assembly’s rules provide special procedures.
[201]
That leaves out the motion for the President’s removal
which was tabled on 31 March 2016 by the Leader of the
Opposition.
This motion was purportedly made in terms of
section 89(1) of the Constitution.  It was based on the judgment
of this Court
in
EFF 1
and alleged wrongdoing on the part of
the President.  It sought his removal from office.
[202]
As the Acting Speaker points out in his affidavit, the motion
was debated and voted on by the members of the Assembly on 5 April

2016.  The applicants participated in the debate and supported
the motion.  The Acting Speaker, rightly so, criticises
the
applicants for now claiming that the motion was premature, when there
was no demur on their part on 5 April 2016.
[203]
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 Assembly to remove the President

from office, even where one or more of the listed grounds are
established.  On the contrary, the Assembly retains a
discretionary
power to remove the President.
[204]
But the process envisaged in section 89(1) involves
necessarily an antecedent determination by the 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.
[205]
The Assembly did not approach the processing of the motion on
the footing that the President had indeed committed a serious
violation
of the Constitution.  This was a necessary condition
for commencing a section 89 process.  Without accepting that one

of the listed grounds existed, the Assembly could not authorise the
commencement of a process, which could result in the removal
of the
President from office.  Moreover, it does not appear from the
papers that the President was afforded the opportunity
to defend
himself.  Without knowing whether the Assembly holds the view
that the President has committed a serious violation
of the
Constitution, it would be difficult for him to mount an effective
defence.  The procedure followed by the Assembly
here does not
accord with section 89.
[206]
If that motion had succeeded, it would not have constituted
impeachment and removal of the President, as contemplated in section

89(1).  Instead, it would have been an unconstitutional removal
of the President from office and would have been liable to
be set
aside on review.
[207]
The Acting Speaker agrees with the applicants that a removal
of the President must be preceded by a finding by the Assembly that

the President has committed a serious misconduct or a serious
violation of the Constitution or the law.  This view of the

parties accords with the language and requirements of section 89(1).
If the President is removed in terms of section 89(1)(a)
or (b), he
or she may forfeit benefits of the office.  That is why the
Acting Speaker describes those provisions as requiring
proof of
wrongdoing on the part of the President.
[208]
Therefore, I conclude that the Assembly has failed to hold the
President to account following delivery of this Court’s
judgment,
as was required by section 89(1).
Remedy
[209]
Having held that the 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.
[73]
In
EFF 1
this Court reaffirmed:
“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.”
[74]
[210]
However, this Court’s remedial power is not limited to
declarations of invalidity.  It is much wider.  Without any

restrictions or conditions, section 172(1)(b) empowers courts to make
any order that is just and equitable.  In
Hoërskool
Ermelo
the Court said about a just and equitable remedy:
“The power to
make such an order derives from section 172(1)(b) of the
Constitution.  First, section 172(1)(a) requires
a court, when
deciding a constitutional matter within its power, to declare any law
or conduct that is inconsistent with the Constitution
invalid to the
extent of its inconsistency.  Section 172(1)(b) of the
Constitution provides that when this Court decides a
constitutional
matter within its power it ‘may make any order that is just and
equitable’.  The litmus test will
be whether
considerations of justice and equity in a particular case dictate
that the order be made.  In other words the order
must be fair
and just within the context of a particular dispute.”
[75]
[211]
The power to grant a just and equitable order is so wide and
flexible that it allows courts to formulate an order that does not
follow prayers in the notice of motion or some other pleading.
This power enables courts to address the real dispute between
the
parties by requiring them to take steps aimed at making their conduct
to be consistent with the Constitution.  In
Hoërskool
Ermelo
Moseneke DCJ declared:
“A just and
equitable order may be made even in instances where the outcome of a
constitutional dispute does not hinge on
constitutional invalidity of
legislation or conduct.  This ample and flexible remedial
jurisdiction in constitutional disputes
permits a court to forge an
order that would place substance above mere form by identifying the
actual underlying dispute between
the parties and by requiring the
parties to take steps directed at resolving the dispute in a manner
consistent with constitutional
requirements.  In several cases,
this Court has found it fair to fashion orders to facilitate a
substantive resolution of
the underlying dispute between the parties.
Sometimes orders of this class have taken the form of
structural interdicts or
supervisory orders.  This approach is
valuable and advances constitutional justice particularly by ensuring
that the parties
themselves become part of the solution.”
[76]
[212]
Here it is just and equitable to direct the Assembly to
perform its constitutional obligations.  With regard to putting
in
place rules that govern impeachment proceedings under section
89(1), the Acting Speaker tells us that the process of making those

rules is at an advanced stage.  Research was done on the matter
and draft rules have been produced.  The process awaits
inputs
from political parties represented in the Assembly.  The matter
was referred to parties in May 2016 but to date none
of them have
responded.  From this lack of response, he deduces that it must
be accepted that parties prefer that rule 85
must apply to
impeachment proceedings.
[213]
It may be mentioned that the inference drawn by the Acting
Speaker is not the most plausible to be deduced from the parties’

failure to respond.  But even if it was, the Constitution does
not impose the obligation to make rules for impeachment upon

political parties.  That duty falls squarely on the shoulders of
the Assembly.  It is an institutional obligation which
may be
fulfilled by the Assembly alone.
[214]
Moreover, I have already demonstrated that rule 85 is
inapplicable to the section 89(1) process.  So, even if it was
the preference
of political parties, this would not relieve the
Assembly from the obligation imposed by section 89(1).
Therefore, it will
be just and equitable to direct the Assembly to
fulfil the relevant obligations within a fixed period of time, so as
to act in
a manner that is consistent with the Constitution.
[215]
The special circumstances of this case demand that the
Assembly be directed to fulfil its constitutional obligations without
delay.
Like motions of no confidence brought in terms of
section 102(2) of the Constitution, an impeachment complaint must be
accorded
priority over other normal business of the Assembly.
Once lodged the Assembly must take steps to ensure that it is
addressed
without delay.  It is the special office the President
occupies which warrants that these matters must be promptly addressed

and resolved so that the President may continue to perform his or her
duties without a dark cloud hanging over him or her.
[216]
In any event the proposed order does not usurp the Assembly’s
powers.  It merely directs that the Assembly must exercise
its
powers without delay.
[217]
The Constitution demands of all those on whom it imposes
obligations, to fulfil them diligently and without delay.
[77]
It is the duty of this Court to ensure that this injunction is
followed.  An order issued to achieve this purpose therefore

cannot be described as trenching upon the separation of powers.
In
Doctors for Life
this Court elaborated on its
responsibility in relation to making certain that Parliament fulfils
its obligations:
“Courts are
required by the Constitution ‘to ensure that all branches of
government act within the law’ and fulfil
their constitutional
obligations.  This Court ‘has been given the
responsibility of being the ultimate guardian of the
Constitution and
its values’.  Section 167(4)(e), in particular, entrusts
this Court with the power to ensure that Parliament
fulfils its
constitutional obligations”.
[78]
Further judgments
[218]
I have read the third and fourth judgments here.  I agree
with the fourth and disagree with the third judgment.  The
divergence
of views in this matter flows solely from different
interpretations assigned to section 89 of the Constitution.
This is not
novel.  It happens frequently in courts presided
over by panels of Judges.  But what is unprecedented is the
suggestion
that the construction of the section embraced by the
majority here constitutes “a textbook case of judicial
overreach.”
The suggestion is misplaced and unfortunate.
[219]
Conceptually it is difficult to appreciate how the
interpretation and application of a provision in the Constitution by
a court
may amount to judicial overreach.  The Constitution
itself mandates courts to interpret and enforce its provisions.
The discharge of this judicial function cannot amount to overreach
whether one agrees or disagrees with a judgment that construes
and
applies the Constitution in a particular way.  A disagreement
with a particular interpretation of the Constitution cannot
sustain
the suggestion in question.
[220]
What this judgment does is to interpret section 89 of the
Constitution and apply it to the present facts.  Based on the
meaning
assigned to this provision, I conclude that the Assembly has
failed to fulfil two obligations arising from the provision.
To
remedy this the Assembly must fulfil those obligations.  The
order proposed does not involve the exercise by this Court
of the
Assembly’s powers.  On the contrary, it requires the
Assembly itself to exercise those powers and perform its

constitutional functions without delay.  This cannot be and is
not a breach of the principle of separation of powers but consists
in
no more than the Court fulfilling its constitutionally assigned duty.
Costs
[221]
The applicants and the intervening parties have succeeded and
consequently the respondents must pay the costs.
Order
[222]
In the result the following order is made:
1.
This Court has exclusive jurisdiction to hear the application.
2.
The 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.
3.
The National Assembly must comply with section 237 of the
Constitution and make rules
referred to in paragraph 2 without delay.
4.
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.
5.
The National Assembly must comply with section 237 of the
Constitution and fulfil the
obligation referred to in paragraph 4,
without delay.
6.
The National Assembly must pay costs of the application, including
the costs of two
counsel where applicable.
MOGOENG CJ:
Why this concurrence
[223]
I have read the first and the second judgments and concur in
the first.  The second judgment is a textbook case of judicial

overreach - a constitutionally impermissible intrusion by the
Judiciary into the exclusive domain of Parliament.  The
extraordinary
nature and gravity of this assertion demands that
substance be provided to undergird it, particularly because the
matter is polycentric
in nature and somewhat controversial.
[224]
It is at odds with the dictates of separation of powers and
context-sensitive realities to prescribe to the National Assembly to

always hold an inquiry, and to never rely only on readily available
documented or recorded evidential material, to determine the

existence of a ground of impeachment.  It is just as insensitive
to this doctrine to hold that impeachment grounds must always
be
determined by the Assembly before the debate and voting on a motion
of impeachment could take place.  And it is even more
so when
the consequential order then directs the Assembly to make rules that
would effectively regulate the process as so prescribed.
This,
in circumstances where that conclusion is resoundingly negated by the
deposition of almost all applicants to the effect that
the
seriousness of the constitutional violation in relation to Nkandla is
“self-evident” or “well-established”.

Without any inquiry these parties represented in the Assembly were
able to determine the existence of an impeachment ground.
Yet
the second judgment in effect says that it is constitutionally
impermissible for them to do so.
[225]
The second judgment’s inability or failure to confront
squarely, the issues pertinently raised by the first and this
judgments
in relation to the very essence of an inquiry and its
alleged indispensability is, in view of the centrality of the inquiry
to
the declaratory order, most concerning.  For, the basis for
any critical move by a court must be capable of easy clarification.

An inquiry has a clear purpose to serve.  It is to unearth the
unknown or ascertain the unclear.  When all the information
or
evidence necessary to resolve any issue is already well-established
or available or well-known to decision-makers, embarking
on an
investigation or inquiry, just because the evidential material is
documented or recorded, would be an absurdity or a sheer
waste of
resources.  What follows exposes the illogicality of effectively
prescribing an inquiry to the Assembly as the only
mechanism that can
help determine the existence of a ground of impeachment.
[226]
There is a striking similarity between the determination of
the existence of a ground for impeachment, and of a ground relied on

for a desired court outcome.  In High Court opposed motion
proceedings, parties file affidavits and annex supporting documents

to help the court resolve even highly complex legal or constitutional
issues.  Similarly, this Court exercising its direct
access or
exclusive jurisdiction, has routinely resolved very intricate
constitutional issues.  Barring negligibly few remittals
to the
lower courts, this mechanism has been most effectively and
impressively employed without the need to resort to any inquiry
or
investigation before argument in court (debate) and the decision
(voting).  And at least a century of litigation history
in this
country has amply demonstrated that grounds on which decisions or
orders are based can be properly established either through
a trial
or motion proceedings.
[227]
Courts are themselves therefore not required to always
determine grounds for the order sought or resolve complex
constitutional
issues only through a process of calling witnesses to
testify and have their versions tested.  And they do not
ordinarily
have to predetermine the existence of any ground before
argument (debate) and a decision (voting) on the issue presented for
determination,
except where a legally permissible preliminary point
is taken.  For this reason, if people choose to have their case
resolved
on the papers, as they are constitutionally allowed to,
their case would stand or fall on those papers.
[228]
By parity of reasoning, it must be constitutionally
permissible and practicable for another arm of the State to properly
determine
the existence of a ground of impeachment either through an
inquiry (trial) or sheer reliance on the abundance of documented or
otherwise recorded evidential material (motion proceedings
equivalent) readily available to it.  A determination of the
existence
of a ground on the papers, which does not necessarily or
always have to be made before the commencement of the debate, would
ordinarily
include the President’s written or recorded defence
(side of the story), and more if she wishes to add to what she might
have already said.  To undertake this task successfully, the
Assembly need not import or have imposed on it rules or procedures

similar to those followed by the courts.  And comity among the
arms of the State demands that it be reasonably assumed that
Members
of the Assembly are right-thinking or responsible and would therefore
not, by two-thirds majority, pass a motion to impeach
a President
when no grounds for impeachment exist.
[229]
There is no formula that is peculiar to the determination of
the seriousness of a violation of the Constitution or the law.

A conclusion that something is serious, be it an accident, mental
problem, crime or threats to judicial independence, as is the
case
with the existence of any ground, flows from an assessment of facts
or information, however presented.  To arrive at
that conclusion
correctly, does not only become possible when people had been called
to present oral evidence.  Otherwise
even appeal courts would
always require some sort of an inquiry, before argument, to assess
whether the existence of a ground or
“seriousness” has
been properly established, whenever it is a requirement.  A
record of what happened would, on
this inquiry is always-a-must
reasoning, never be enough.
[230]
Additionally, parties always leave it to the real
decision-maker to determine the existence of a ground for the relief
or outcome
sought.  Although they have the right to, they need
not even express an opinion on whether grounds have been established
but
are only really required to provide the critical evidential
material orally or in writing, as the case may be, before argument
and judgment.  This extends to an impeachment process.
What the Assembly really needs is not necessarily the opinion
of the
one(s) moving for impeachment and the one sought to be impeached.
It is relevant material on which it can base its
own determination of
the existence or otherwise of a ground.
[231]
The need to afford the President a fair hearing can never
serve as the reason or excuse for excluding the possibility of
documentary
or recorded evidential material ever being sufficient to
help the Assembly determine the existence of any ground of
impeachment
or the seriousness of a constitutional breach if it be
the only issue to determine.  It bears repetition that based on
what
this and other Courts have done over many years in motion
proceedings, the President’s right to be heard in an
impeachment
process may at times be fully exercised by presenting
sworn affidavits or electronically recorded statements or written
representations.
That right does not always require an enquiry
or oral presentation to find full expression.
[232]
In any event, the mainstay of the declaratory order in the
second judgment is not the need to afford the President the
opportunity
to be heard.  It is to ensure that there is an
effective operationalising mechanism that would facilitate the
Assembly’s
fulfilment of its obligation to hold the President
accountable via the impeachment avenue.  And that mechanism is,
according
to the second judgment: (i) One that ensures that the
debate and voting on impeachment are always preceded by an inquiry;
(ii)
conducted by a structure or committee whose size and party
representation are provided for in the rules; (iii) rules that
guarantee
that the majority party in the Assembly would not use its
numerical strength to frustrate the tabling and debating of
impeachment
motions in order to shield the President who is their
leader; and (iv) the purpose or mandate of the inquiry or committee,
respectively,
should always be to predetermine the existence of a
constitutional ground to be relied on for impeachment before the
merits or
demerits of impeachment could be debated.
[233]
The Assembly does at least have a choice between an inquiry
and an appropriately adapted equivalent of motion proceedings, most
of which are disposed of by this Court without a hearing.  A
recognition of the existence of that choice would obviously militate

against the possibility of the order in the second judgment being
made.  And that order may only be properly made if all the

Nkandla material, which includes the President’s defence,
cannot help the Assembly determine the existence of an impeachment

ground – an exercise that this Court may not and has not
embarked upon.  A recognition of that choice would thus
constrain
this Court to leave Members of the Assembly desiring to
impeach the President to examine closely, all the documented or
otherwise
recorded evidential material relating to Nkandla to
determine whether a ground exists and whether the President’s
version
is included therein.  It is not for this Court to assume
that the ground does not exist or that his version is not included

and to then view this as the additional ground for the declaratory
order.
[234]
All of the above and the well-known history of the Nkandla
saga, the non-recognition of what to me is an undenied and undeniable

possibility of the Assembly sometimes being able to determine a
ground of impeachment on the papers or recorded evidential material,

together with the order, explain the need for the perspective given
in this concurrence.  That perspective is more about the

futility of holding an inquiry even when all the evidential material
necessary for the determination of the existence of a ground
for
impeachment might be readily available in whatever form.  And
that material could include the President’s defence
or side of
the story.  Meaning, her defence does not always have to be
presented orally and at a hearing, and not holding
an inquiry does
not, without more, justify the conclusion that the President’s
defence or version is not included.
[235]
This Court is the guardian of our constitutional democracy and
the final arbiter of all constitutional or legal disputes.  It

is in terms of our constitutional architecture, a stabilising,
tension-dissolving and potentially unifying force – the
non-partisan
and much-needed voice of reason, particularly when a
constitutional crisis looms large or has already set in.  Its
impartiality
must therefore never be open to reasonable doubt.
For, its moral authority without which it would cease to enjoy
legitimate
public confidence and ready compliance with its decisions
by all, owes its existence to its predictable and self-evident
execution
of its mandate without any apparent fear, favour or
prejudice.  It is after all the embodiment of the legendary Lady
Justice
– a dispenser of justice who is blind and deaf to
images of and reports on the good reputation or notoriety of
personalities
before her, but never misses any legitimate and
relevant legal or factual point for or against any litigant.  As
in
Makwanyane
[79]
,
where the death penalty was declared unconstitutional against the
well-known wishes of almost every citizen, this Court is required
to
always display the critical boldness to go against overwhelmingly
popular and forceful opinion.
[236]
When approached for intervention, this Court’s role is
to help only those who are constitutionally incapable of helping
themselves.
And, if the solution has already been provided and
it is within the applicants’ remit to address their own problem
effectively,
this Court is duty-bound to let them do it themselves.
Mindful of the dictates of separation of powers, this ought to be
even more so when help-seekers are the bearers of the primary
constitutional responsibility, in another arm of the State, to do

what they seek to achieve through an order of this Court.  The
running of State affairs is a trilateral responsibility –

shared by the Executive, the Legislature and the Judiciary.  It
would be quite concerning if a court were to grant an order
that does
not serve or advance any practical purpose and in circumstances where
that order deals with what has been achieved already
or could be
improved on if only cooperation were forthcoming from applicants, in
a process that is already under way.
[237]
None of the Applicants has asked the National Assembly to
initiate or has attempted to table a motion for the impeachment of
the
President.  And, none was thwarted from doing so.  The
only request made was for an inquiry, chaired by three Judges,
to be
held so that the President could be disciplined by the Assembly for
the controversial Nkandla upgrades.  In response,
the Speaker
correctly said that she lacked the power to do so.
[238]
That said, stripped of all legal niceties or jargons, this
matter is about whether it is constitutionally and practically
possible
for a Member of the Assembly to table a motion and
demonstrate the existence of a ground, for the impeachment of
President Zuma
for the Nkandla saga through any other process or
whether the Assembly necessarily requires some inquisitorial or
investigative
mechanism to be able to establish the existence of that
ground.  Moving from the premise that last year’s motion
for
his impeachment for Nkandla was tabled, debated and voted on
without any hindrance, the only issue then is the feasibility of
determining
a ground for impeachment in relation to Nkandla without
any inquiry.
[239]
The Public Protector’s Nkandla report and its findings
that were not set aside by any court, this Court’s
EFF 1
judgment, all the Assembly’s investigations on Nkandla, the
open and usually televised question and answer sessions, debates
on
grounds relied on for motions of no confidence and impeachment ought
to be readily available to enable any Member of the Assembly
to
determine the existence or otherwise of a ground for the President’s
impeachment for Nkandla.  No one has said why
this body of
documented or recorded evidential material could never be adequate
for the purpose of determining the existence of
a ground of
impeachment or the seriousness of a violation of the Constitution or
the law and whether the material contains the
President’s
defence or version.  Courts enjoy the flexibility of resolving
disputes or issues through either a trial
(enquiry) or motion
proceedings (a straight impeachment motion without an enquiry) and
should thus be the last to prescribe to
the Assembly to either retain
these logically and realistically available options or abandon any.
And for a court to prescribe
any would be an imposition of its own
preference.  That amounts to the usurpation of the Assembly’s
section 57 powers
to determine whether it prefers one or both
mechanisms.
[240]
Furthermore, this case has four disturbing features.
One, the National Assembly admittedly has flexible and effective

mechanisms that have been employed to hold State functionaries
accountable and that could also be used to hold the President
accountable.
Two, the Assembly’s process of exploring the
possibility of either retaining or improving on its impeachment
regulatory framework
is already at an advanced stage.  Three,
those without whom that process cannot yield fruit have, instead of
participating
in the Assembly’s rule-drafting sub-Committee to
address their concerns, chosen to approach this Court to do what they
are
able and constitutionally obliged to do.  Four, without even
attempting to demonstrate how the existing ad hoc Committee mechanism

has failed in practice and why written or well-known evidential
material can never be sufficient for the determination of an
impeachment
ground, the second judgment seeks to prescribe to the
Assembly what the key and inherent features of the impeachment
process should
be.  In spite of evidence to the contrary, it
also intends to declare that the Assembly has failed to make rules
that regulate
the impeachment process and has thus failed to hold the
President accountable for the Nkandla saga.
The existing mechanism
[241]
The President has been held accountable for the Nkandla
debacle almost exhaustively.  It has just not been possible to
remove
him from office which would probably explain the relentless
efforts being made to find another and even more onerous way to
remove
him.  It cannot therefore objectively and justifiably be
said that there is any available constitutional ground on which the

President has never been held accountable for the non-security
upgrades at his Nkandla private residence.  That position would

be sustainable only if the constitutionally accepted notion of
holding him accountable for Nkandla were nothing short of his actual

removal from office.
[242]
Where an enquiry or investigation is deemed necessary before
debating and voting on a motion, an ad hoc Committee mechanism is
available
to the National Assembly to hold the President
accountable.  Confidence in the appropriateness and efficacy of
an ad
hoc Committee mechanism for the impeachment motion was
displayed by the DA, with the implicit concurrence of all other
opposition
parties involved in this matter.  Applicants have
expressly acknowledged this reality.  In other words, those who,
in
terms of section 57, bear the constitutional obligation to
determine the procedure best-suited to a section 89 process accept
that
the ad hoc Committee could be an effective mechanism for holding
the President accountable for Nkandla.  The applicants
themselves
further say that “despite having a host of potential
mechanisms available, the Speaker and the National Assembly have
failed
to provide any”.
[243]
An ad hoc Committee is an accountability-enforcing mechanism
created and available to be utilised by political parties represented

in the National Assembly.  And it must be repeated that even the
DA does to some extent agree although it prefers a “permanent

structure”.  That would explain why it successfully asked
for the establishment of an ad hoc Committee in the President

Al-Bashir-related impeachment process.
The second judgment’s preferred
mechanism
[244]
To sustain the order it makes, the second judgment records a
dissatisfaction with the suitability of an ad hoc Committee as an
impeachment-activating
mechanism.  It says that an ad hoc
Committee creates “the risk of an impeachment complaint not
reaching the Assembly.
The other reasons advanced for this are
that rules in terms of which an ad hoc Committee can be established
do not specify the
size of, and party representation in, the
Committee and the set procedure it is to follow in doing its work.
Another criticism
is that the ruling party is likely to enjoy
majority representation in the ad hoc Committee as in the Assembly
and could use it
to prevent an impeachment complaint from reaching
the Assembly in order to shield the President who is its leader.
Reliance
is placed on
Mazibuko
[80]
where this Court sought to address the real risk of the Assembly’s
Scheduling Committee thwarting or frustrating the tabling
of a motion
of no confidence.  Not only does the second judgment seem to
trivialise the role of the question and answer sessions
and the two
motions of no confidence, it also treats as good as not having
happened, the Nkandla-provoked impeachment that was
tabled, debated
and voted on in 2016.
[245]
This Court would thus prefer a regulatory framework that is
more elaborate with specific provision for size, party
representation,
procedure as well as in-built safeguards against the
possibility of the majority party shielding the President against
being dealt
with properly through an impeachment process.  Also
central to the second judgment’s rationale for the declaratory
order
is the view it takes of what the role of its ideal and
effective operationalising-mechanism for a section 89 process, must
be.
It is essentially the following:
“
[178]
And since the determination of [the grounds for impeachment] falls
within the exclusive jurisdiction of the 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
misconduct and inability to perform the
functions of the office.
[179]
For the impeachment process to commence, the Assembly must have
determined that one of the listed grounds
exists.  This is so
because those grounds constitute conditions for the President’s
removal.
[180]
Therefore, any process for removing the President from office must be
preceded by a preliminary enquiry,
during which the Assembly
determines that a listed ground exists.  The form which this
preliminary enquiry may take depends
entirely upon the Assembly.
It may be an investigation or some other form of an inquiry.
.
. . .
[182]
Without rules defining the entire process, it is impossible to
implement section 89.”
[246]
What appears in the last two paragraphs is the sum-total of
what underscores the inflexible requirement of an enquiry, the total

and permanent exclusion of written or recorded evidential material as
the sole basis for determining a ground, rules that define
the
“entire process” and the institutional predetermination
of the existence of a ground for impeachment, the declaratory
order
sought to be made and the rejection of the ad hoc Committee as a
suitable mechanism for acting against the President in terms
of
section 89.  And there is nothing more to explain the
proposition that “grounds for impeachment must be established

before the motion to remove the President from office is debated and
voted on”, and that “without rules defining the
entire
process, it is impossible to implement section 89”.  The
second judgment fails to explain why, unlike in motion
proceedings
and appeals, the allegations relied on for the President’s
impeachment and his defence can never be properly
disposed of on the
papers.
[247]
The National Assembly must be left to enjoy its
constitutionally-guaranteed functional independence to determine its
own procedures
or processes.  The conclusion that a debate and
voting on the impeachment of the President must be preceded by an
institutional
predetermination of the existence of a ground or what a
serious violation of the Constitution or law is, and that section 89
is
incapable of proper implementation without rules defining the
entire process, lacks the foundation.  And so does the assertion

that “any process for removing a President from office must be
preceded by a preliminary enquiry, during which the Assembly

determines that a listed ground exists.”  If the
institution or the Assembly has taken a collective decision that a

ground for impeachment exists or a serious violation has been
committed, what then would the debate be about?  At best for

that process, the only remaining leg would be voting.
[248]
And, even that enquiry or investigation is unlikely to include
all Members of the Assembly.  If it is grounded on a legitimate

concern about what is in the best interests of the President, then no
enquiry and no new rule is necessary.  The Assembly’s

rules are not required to be perfect or water-tight.  At most,
this Court could in passing or cautiously allude to the possible

beneficial effect of factoring the possibility of expressly
recognising the President’s right to be heard in the section
89
specific rules that the sub-Committee is already considering –
not to make a declaratory order.  But even then, as
in motion
proceedings, the right to be heard is not only exercisable orally,
but also in writing.
[249]
The approach that insists on an enquiry all the time,
prohibits any debate or voting unless an institutional
predetermination has
been made.  How then would the enquiring
structure or committee’s obviously non-binding decision or
determination become
a collective predetermination by the Assembly?
Or is it proposed that the entire Assembly be involved in that
preliminary
process?  Besides, parties represented in the
Assembly could, as they are entitled to in any genuine democracy,
still disagree
on the existence of a ground for impeachment.
And this would mean that there would never be any debate or voting on
an impeachment
unless an agreement has been reached?  This is
bound to paralyse rather that inject effectiveness in an impeachment
process.
[250]
There is no justification for the inflexible position adopted
to the effect that the grounds for impeachment must always “be

established before the motion to remove the President from office is
debated and voted on”.  The existence or otherwise
of
grounds for impeachment is all about a value judgement that Members
of the Assembly are required, best placed and well-able
to make.
It is one thing for this Court to hold the view that a particular
procedure would best advance the course of accountability,
and it is
another to impose its detailed preference on another arm of the
State.
[251]
And no provision of the Constitution requires of the Assembly
to make a rule exclusively for the section 89 process.  If a
rule exists that makes adequate or satisfactory provision for this
section to find practical expression whenever necessary, then
that
rule ought to suffice, even if it also applies to a range of other
accountability-enforcing obligations of the Assembly.
A section
89 specific rule is thus nothing to be particularly dogmatic or
pedantic about.  But, the second judgment prefers
a more
elaborate process that relates only to section 89.
Separation of powers
[252]
We said in
EFF 1
that ours is a less intrusive role and
that we are not to prescribe to the National Assembly what mechanics
to adopt for holding
the President accountable:
“It falls
outside the parameters of judicial authority to prescribe to the
National Assembly how to scrutinise executive action,
what mechanisms
to establish and which mandate to give them, for the purpose of
holding the Executive accountable and fulfilling
its oversight role
of the Executive or organs of State in general.  The mechanics
of how to go about fulfilling these constitutional
obligations is a
discretionary matter best left to the National Assembly.  Ours
is a much broader and less intrusive role.
And that is to
determine whether what the National Assembly did does in substance
and in reality amount to fulfilment of its constitutional

obligations.  That is the sum-total of the constitutionally
permissible judicial enquiry to be embarked upon.  And these
are
some of the “vital limits on judicial authority and the
Constitution’s design to leave certain matters to other

branches of government”.  Courts should not interfere in
the processes of other branches of government unless otherwise

authorised by the Constitution.   It is therefore not for
this Court to prescribe to Parliament what structures or measures
to
establish or employ respectively in order to fulfil responsibilities
primarily entrusted to it.  Courts ought not to blink
at the
thought of asserting their authority, whenever it is constitutionally
permissible to do so, irrespective of the issues or
who is involved.
At the same time, and mindful of the vital strictures of their
powers, they must be on high alert against
impermissible encroachment
on the powers of the other arms of government.”
[81]
[253]
Similarly, in
UDM
we chose not to prescribe a secret
ballot voting procedure to the Assembly for a motion of no
confidence.
[82]
This, in circumstances where there is already a strong constitutional
pointer to a secret ballot, for electing the President
and other
constitutional office-bearers, as the implicitly appropriate method
for voting him or her out of office.  Our appropriate

self-restraint was again informed by our ever abiding
consciousness of the vital strictures of our powers and our
super-alertness
to impermissible encroachment on Parliament’s
powers.  We could, many would reasonably argue with some force,
have decided
that a secret ballot was the only appropriate voting
procedure for a motion of no confidence.  But sensitivity to the
dictates
of separation of powers forbade us.  For, it is for the
National Assembly to make that choice, not the Judiciary.
Respect
for separation of powers again constrained us from directing
the Speaker to schedule a debate on a motion of no confidence on a

particular date.  We remitted the request to the Speaker to have
the motion tabled in terms of whatever procedure she considered

appropriate.
[254]
This time around, we are even specific about size,
representations, procedure, provision for the entirety of the
process, avoiding
abuse of majority representation, institutional
predetermination of grounds before debating and voting on
impeachment.  That,
in my view, is an unprecedented and
unconstitutional encroachment into the operational space of
Parliament by Judges.
[255]
Worse still, under substantially similar but far less
permissive circumstances than in
UDM
, we are now prescribing
to the National Assembly to only process impeachment after an inquiry
and a collective predetermination
of the seriousness of the violation
of the Constitution or the law or the existence of any ground has
been established.  And
we do so when there is a tension between
what “we” consider appropriate as against the mechanism
the Assembly already
has, that it has previously used, and most
applicants deem appropriate, and the possible improvement that the
Assembly seeks to
effect through its own sub-Committee based on legal
advice already received from the Chief State Law Advisor and
Parliament’s
in-house legal team.  There exists no
jurisdiction in the whole world, that I am aware of, where a court
has decided for Parliament
how to conduct its impeachment process.
Respect for separation of powers explains why this is so.
Adequacy of the existing mechanism
[256]
Parties recognise an ad hoc Committee as a mechanism that is
flexible and wide enough to suitably accommodate the impeachment
process.
Applicants in their founding affidavit specifically
and quite correctly say that it is not their case that there is no
mechanism.
This means that if it proves necessary to conduct an
enquiry before the initiation of an impeachment process, there is a
procedure
or mechanism available for that purpose.  It is public
knowledge that the existing accountability-enforcement mechanisms
have
all been unleashed on the President for Nkandla.  The
suspicion or concern of the President being shielded by his party by

preventing the debate and voting is thus belied by the realities.
A total of three Nkandla-related attempts to remove him
from office
has been recorded – two motions of no confidence and one
impeachment motion.  The National Assembly has
been fulfilling
its obligations.
[257]
This Court now says the President has never really been held
to account through an impeachment process and seeks to declare it
impermissible
for Members of the Assembly to be satisfied with the
existence of an impeachment ground or the seriousness of a
constitutional
violation absent an inquiry and institutional
predetermination of the existence of the ground for impeachment.
This, regardless
of whether Assembly Members might be having all the
facts they need as the DA seemingly believed it did when it embarked
upon its
2016 impeachment process.  Again I say, it is their
value judgement to make.  It ought to be practicable for a
Member
to move for impeachment based on documents or a record that
she believes supports the ground relied on and so other Members to
then be able to satisfy themselves on all documented information and
legal advice they have, whether a ground exists.
Unsurprisingly,
the DA and other parties represented in the
National Assembly moved for the adoption of the resolution to
impeach the President,
apparently satisfied with the abundance of
information already in their possession.
[258]
The second judgment also says that the resolution to remove
the President would have been unconstitutional had it been passed,
simply
because the Assembly would not in effect have almost
ritualistically embarked on an investigation or enquiry and
predetermined
the existence of a ground for impeachment.  Again,
this is an impeachment process with a very long, documented and
well-known
history.  No one has suggested that all the existing
material has been found wanting by any party or the Assembly or this
Court.  If the basis for the inquiry is to first be satisfied
that a ground for the intended impeachment process exists and
form an
opinion, for whose sake is the enquiry to be held?  The parties,
represented in the Assembly, have themselves said
that the
constitutional violation in relation to Nkandla is “well
established” and “self-evidently of a serious
nature”.
Who needs an enquiry to establish what is already “well-established”?
[259]
The one example that exposes the impracticality or
illogicality of an inflexible rule about an enquiry follows.  If
the President
were to shoot and kill say twelve Members of the
Assembly in full view of the Members of the Assembly during a
televised sitting,
and after presenting a defence a court convicts
him or her of murder and imposes a wholly suspended sentence, what
would be the
need for an enquiry?  For what practical reason?
Why would a recording of what Members actually witnessed and the
record
of court proceedings never be adequate?  If after the
Public Protector’s report, findings and remedial action,
which no court has set aside, this Court concludes as it did in
EFF
1
about the President, what would an inquiry realistically be
expected to achieve?  What about the many question and answer
sessions, two motions of no confidence and one impeachment motion,
all debated extensively and voted on?  In almost all of
the
above the President stated his defence or side of the story.
Add to that the reality that a mechanism does exist and
has been
successfully operationalised for a section 89 process that was not
taken to its logical conclusion by one of the applicants.
Also
that judicial notice may properly be taken of the reality that the
governing party’s majority was not used to hinder
the
establishment of ad hoc Committees to enquire into SABC and Eskom and
that no majority appears to have been used to thwart
the
establishment of a similar committee in the previous removal process
of a National Director of Public Prosecutions.  These
are the
undeniable realities.
[260]
It ought to be open to the Assembly to be content with what is
already common knowledge or what the President does not deny.

That possibility may well exist now or in the future.  The
Public Protector’s findings have never been set aside by
a
court and this Court’s judgment in relation to Nkandla stands.
So, the Assembly has them readily available to it.
All this
points to the discretion the Assembly has, to hold an inquiry only
when it is justifiable or necessary but to otherwise
rely on
documented or otherwise recorded evidential material and proceed to
debates and votes in circumstances where an enquiry
would be a
robotic and pointless exercise to embark upon.  It cannot be
emphasised enough that it is for the Assembly or any
of its Members
alone to assess the available information and to decide whether an
impeachment motion based on that information
would be sustainable or
proves the existence of a ground.  On all the Nkandla material
available to the Assembly, its Members
may well be in a position to
decide on the existence of the ground, and that extends to the
seriousness of a constitutional violation.
Based on that
assessment an individual or group may then decide whether or not to
table an impeachment motion.  Judges themselves
never hold an
inquiry to resolve very difficult issues in direct access or
exclusive jurisdiction applications.  Why should
it be always
unconstitutional for Members of the Assembly in relation to all
impeachment matters?
Mazibuko will
not help
[261]
Unlike in
Mazibuko
, there is no rule that could
potentially muzzle or frustrate the progression of a motion for
impeachment.  Unsurprisingly,
none of the applicants seeks a
declaration of invalidity because there is no rule or chapter
equivalent to the
Mazibuko
scenario, to declare
constitutionally invalid.  And, the ad hoc Committee is a
section 89 appropriate mechanism that has proved
to be effective even
in the removal of an NDPP.  The same applies to the SABC and
Eskom.  And not a single incident of
its establishment being
hindered has been cited.  No evidence to the contrary exists –
only a suspicion or supposition.
Mazibuko
did not make a
choice for the National Assembly in relation to its constitutional
responsibilities.  It provided guidance
in broad terms.
[262]
Mazibuko
held that Chapter 12 of the Rules of the
National Assembly is inconsistent with section 102(2) of the
Constitution to the extent
that it does not provide for a political
party represented in, or a Member of, the National Assembly to
enforce the right to exercise
the power to have a motion of no
confidence in the President scheduled for debate and voted on in the
National Assembly within
a reasonable time or at all.  The Court
then suspended the declaration of invalidity for six months to allow
the Assembly
to correct the constitutional defect.
[263]
And, it cannot be emphasised enough that it lies with the
constitutional powers of the National Assembly, not this Court, to
decide
which procedure would best work for it.  The primary
concern in
Mazibuko
was that the existing rules thwarted or
frustrated steps to table motions of no confidence in the President
instead of protecting,
advancing or facilitating the exercise that
right as they should.
[83]
None of the applicants have said that motions for a section 89
process and the request for an enquiry through an ad hoc Committee

mechanism have ever been thwarted by the majority party to shield its
leader.  On the contrary, the DA and this Court, through
the
second judgment, suspect that it might, and that is why it does not
prefer a mechanism that has seemingly worked well and that
at least
three parties represented in the Assembly have had the opportunity to
express their satisfaction with.  As indicated,
it was
previously secured by the DA in respect of an impeachment process
presumably because it accepted its efficacy and
appropriateness.
No incident of frustrating its access has been cited.  And
Rule 6 of the Assembly Rules empowers
the Speaker to
innovatively fill up any regulatory lacuna that might exist in
relation to even the ad  hoc Committee based
impeachment
process, where necessary.
[264]
There is also nothing to suggest that an ad hoc Committee
would not be set up to enquire into what might prove necessary to be
enquired
into, pending the completion of the current section 89
rule-making process.  It is just that no attempt was made.

And its ability to do the work satisfactorily has not been called
into question.  And a section 89 specific mechanism
is
being looked into and would probably have been finalised or agreed
upon, had applicants returned to the sub Committee to
resume
their rule-making responsibilities.
Mazibuko
is
therefore no authority for the proposition that the Assembly has
failed to create an operationalising mechanism for a section
89
process.
The inescapable discretion
[265]
All of the above lead to the inescapable conclusion that there
would be impeachment cases that require some sort of an enquiry.

But, there would also be others that would render an enquiry an
unnecessary and senseless process.  For, there ought not to
be
no enquiry into what all or most decision-makers consider to be well
established – for example where the evidential material

required by both the “accuser” and the “accused”
is well-documented or otherwise recorded.  It would
be a waste
of scarce resources and a needless exercise or incident of going
through the motions.  The need to honour the President’s

right to be heard, when all the necessary information, including his
or her defence, is readily available, cannot always justify
an
enquiry or the setting up of a committee.  Where the defence is
not already incorporated in the documented or recorded
evidential
material, then it may at times be supplied in writing.
[266]
The effect of the preferred indispensability of an enquiry and
the institutional predetermination of the existence of a ground for

impeachment is that it is constitutionally impermissible for the
National Assembly to ever be satisfied that any ground for
impeachment
exists unless an inquiry has first been held.
Meaning, even if there is a well-documented and conclusive proof, or
a court
judgment or a well-known incident that happened before the
eyes of all Members of the Assembly, it would be most inappropriate
and unconstitutional for them to ever be satisfied with the obviously
conclusive evidence.  In motion proceedings a response
or
defence is not required to be oral. Only debates or argument may be.
Why should it be any different with impeachment under
all
circumstances?  There is nothing so special about this
constitutional issue that it should require of the Assembly to
do
what this Court itself never has to do or what the High Court does
not always have to do?
[267]
Let me lay bare my deep-seated agony and bafflement about the
second judgment’s refusal to recognise the discretion the
Assembly
obviously has.  At the risk of being too repetitive,
the Public Protector investigated the Nkandla saga thoroughly.
She then made findings and took remedial action against the
President.  It took her years to complete her thorough-going
investigation.
In
EFF 1
, this Court upheld the Public
Protector’s remedial action, and shared its perspective on that
matter at considerable length.
Debates and voting took place on that
same matter, almost exhaustively and for quite sometime now.
All applicants have severally
expressed their views on what they
regard as the “self-evident” seriousness and the
“well established”
nature of the constitutional
breach the President’s conduct entails.  No wonder they
have already moved more than once
for the President to be removed
from office because of Nkandla.  Based on this documented and
recorded evidential material,
a real likelihood exists that a ground
for impeachment might well be determined by the Assembly without the
need for any enquiry.
Without anybody suggesting that this is
not the case, or this Court satisfying itself otherwise, it however
seeks to prescribe
an enquiry and has an order ready to support it.
[268]
Whereas it is conceivable that an enquiry may at times be
necessary, it is inconceivable that Members of the National Assembly
could
never be able to properly dispose of a section 89 matter
without an enquiry or the near-impossible collective predetermination
of the existence of a ground before the debate and voting.  To
hold otherwise, would amount to an unjustifiable introduction
of
rigidity into the section 89 process – an inexplicable
determination to make a declaratory order against the National

Assembly.  Flexibility is required and is a natural consequence
of a realistic and practical application of this section with
due
regard to circumstances that would have triggered its operation.
An enquiry ought not to be insisted on, for instance,
when clarity
abounds or when the President does not even deny that she has made
herself guilty of a serious violation but won’t
just resign.
And circumstances might well exist where that is so.
The implications of a discretion
[269]
The language of section 89 is in my view being overly strained
to divine from it an elusive justification for a particular
conclusion.
Not even a single word from either section 89 or
section 57 or any other constitutional provision or best practice is
being relied
on to sustain the preferred conclusion.
[270]
And of course the approach that prescribes the inevitability
of an enquiry and predetermination of a ground as a prerequisite, is

essential for the second judgement’s declaratory order.
The recognition of what strikes me as an obvious discretion
the
Assembly, just like courts, has to sometimes do without an enquiry
where the ground for impeachment is self-evidently well
established,
as most applicants in this case, have said, would militate against a
declaratory order.  This insistence on how
an impeachment
facilitating committee may have to be constituted in disregard for a
democratically-secured majority representation
in the Assembly, how
it should operate, and the prescription of an enquiry and
predetermination that is not objectively based on
anything but
judicial preference, reaches over the bold and sharp bright line of
separation of powers.
Avenue for improving the mechanism
[271]
As for the apparent concern that the existing section 89
activating mechanism cries out for improvement, here lies the
answer.
In the exercise of its constitutional rule-making
powers the National Assembly set up a sub-Committee to revise its
rules.
Remarkable progress was made.  For instance, in
compliance with
Mazibuko
, an apparently satisfactory provision
was made for processing motions of no confidence in the President.
[272]
A deliberate effort was also made by that National Assembly
sub-Committee to consider the retention of the ad hoc Committee
mechanism
or making express or specific provision in the rules for
the possible removal of a President of the Republic in terms of
section
89 of the Constitution.  The profundity of the matter
necessitated that Members of the Assembly, serving in that
sub-Committee,
consult with their political principals whereafter a
final position would be taken in relation to the section 89
process-regulating
mechanism.  Representatives of political
parties, including applicants, have for undisclosed reasons not yet
returned to the
sub Committee for some 8 months.  And that
is why no decision on either the section 89 specific rule or
retention
of the ad hoc Committee mechanism has been made.
Midstream this process of fulfilling its constitutional obligation,
the
Assembly is now being ordered through the second judgment to do
what it is busy doing.
[273]
By the way,
Mazibuko
was not called upon to decide the
implications of an order that seeks to have the Assembly do what it
is already doing and did
not therefore decide this issue.  There
is nothing to suggest that the section 89 specific activating
mechanism would, if
considered necessary by the Assembly, not be
crafted if this Court were to leave the Assembly to do what it alone
is mandated to
do, unconstrained by a judgment that is even specific
on some of the sensitive details like the unsubstantiated possible
abuse
of majority power.  The declaratory order would serve no
purpose whatsoever except to make the Assembly look like it is
failing
to honour its obligations when it is not so.  Such is
not our role.
[274]
It ill-behoves political parties who know and largely accept
that there is an effective mechanism in place and who, through their

members, were remiss in the fulfilment of their constitutional
obligations by not participating in a structure set up to achieve
the
kind of compliance they seek, to have their concerns addressed or
improve on the mechanism they already have, to then turn
around and
blame it all on the institution that they have failed.  This, as
if they are not an integral and essential part
of its functionality.
[275]
What the applicants should do is initiate the section 89
process and ask for the establishment of an ad hoc Committee if
considered
necessary or pour themselves into the Nkandla evidentiary
material and decide if a ground does, contrary to the view they
previously
held, not exist or go back to the sub-Committee to
complete the section 89 rule-making process they have abandoned
half-way through.
After all, it is their primary obligation as
parties represented in the National Assembly.  The Assembly has
not prevented
them from doing so.  The ball is and has always
been in their court.  And courts ought to frown upon rather than
encourage
that posture – a disregard for existing mechanisms
and self-dislodgement from structures established to address
concerns,
instead seeking “urgent” help from courts.
Conclusion
[276]
Imperfect as it may be, the ad hoc Committee does, according
to most applicants, suffice for a section 89 inquiry where
necessary.
Additionally, applicants cannot conveniently strip
themselves of their constitutional obligations for the purpose of
securing court
orders.  Having failed to resume participation in
a process to achieve what they or one of them prefers, they have now
approached
this Court to in effect say “we have failed in our
obligation to draft the section 89-specific rule, please order us to
do
so, and to do so speedily.”
[277]
The sub-Committee that already exists to develop the
apparently preferred regulatory framework has not been dissolved.
It
will naturally resume its duties as soon as Members return with a
mandate from their parties.  What different purpose then
would
the declaratory order in the second judgment serve?  Is it to
treat that sub Committee as if it does not exist?
Is it to
disband it and effectively order the establishment of a new
committee?  Or is it to prod Members of the National Assembly,

like the applicants, to do what they always had the opportunity and
the constitutional obligation to do but simply did not do for

unexplained reasons?  In sum, to what end is the order being
made?
[278]
This case has never been about impeachment in general.
It has always been about the impeachment of President Zuma.  It

is context-sensitive or situation specific.  Little, if
any, room therefore exists for over-indulging in generalities
about
motions for impeachment.  Most applicants have stated that an
impeachment ground is well-established and self-evident,
and that
mechanisms to facilitate the process exist.  All of the above
has the benefit of the President’s repeatedly
stated position
on the seriousness or otherwise of the Nkandla saga.
Well documented or electronically recorded evidential
material
on Nkandla including the President’s side of the story exists.
And it might well suffice for the second Nkandla
impeachment motion,
if only this Court were to allow the Assembly, including applicants,
to examine that material and form its
own opinion.
FRONEMAN J (Cameron J, Jafta J,
Kathree-Setiloane AJ, Kollapen AJ, Mhlantla J, Theron J)::
[279]
I concur in the judgment of my brother Jafta J (second
judgment).  But for the first paragraph of the Chief Justice’s

judgment (third judgment
), I would have been
content for my concurrence to merely be noted in the usual manner.
The Chief Justice, however, characterises
the second judgment as
“a textbook case of judicial overreach – a
constitutionally impermissible intrusion by the Judiciary into the
exclusive
domain of Parliament”.
[84]
He himself recognises “the extraordinary nature and gravity of
this assertion”.
[85]
It should not be left unanswered.
[280]
It is part of constitutional adjudication that, as in this
matter, there may be reasonable disagreement among Judges as to the
proper
interpretation and application of the Constitution.
[86]
The respective merits of opposing viewpoints should be assessed on
the basis of the substantive reasons advanced for them.
There
is nothing wrong in that substantive debate being robust, but to
attach a label to the opposing view does nothing to further
the
debate.
[281]
For the reasons lucidly set out in the second judgment, I do
not agree with the reasoning of the Chief Justice and the Deputy
Chief
Justice in their respective judgments.  I do not, however,
consider the different outcome that they reach to be the product
of
anything other than a serious attempt to grapple with the important
constitutional issue at hand.  The fact that I do not
agree with
their reasoning or the outcome that they propose does not mean that I
consider them to have abdicated their responsibility
to ensure that
the National Assembly acts in accordance with the Constitution.
[282]
I consider that the outcome reached in the second judgment is
the product of equally serious, honest and detached reasoning on the

part of Jafta J and those of my colleagues who concur in his
judgment.
[283]
According to the second judgment, section 89(1) requires that,
before a resolution to remove the President is voted upon, an
investigation
into the existence of the preconditions set out in that
subsection must be carried out.  As I understand the first
judgment,
the Deputy Chief Justice does not in any fundamental
respect dissent from this interpretation.
[87]
And despite much confusion and posturing, the parties appeared to
accept at the hearing that this is indeed the proper interpretation.
[284]
The second judgment directs the National Assembly to make
rules for this procedure.
[88]
That direction merely compels the National Assembly to do what it
already has the competence to do under section 57 of the

Constitution, which provides that the National Assembly may determine
and control its own arrangements and “make rules and
orders
concerning its business”.
[89]
Nowhere does the second judgment prescribe the content of those
rules.
[90]
[285]
Thus the second judgment does nothing more than interpret
section 89(1) and direct the National Assembly to act in accordance
with
the Constitution.  It attempts to provide the National
Assembly with guidance on the tools necessary to enable it to fulfil

its constitutional duty, to hold the President to account in the
direst of situations.  It does not seek to tell the National

Assembly how to use those tools.
[286]
Whether the order in the second judgment will achieve its aim
is for history to determine.  I am confident that it, and future

South Africans, will recognise the value of the substantive
interpretive exercise undertaken in the second judgment in order to

assist the National Assembly to do what section 89(1) of the
Constitution demands of it.  That exercise is self-evidently

serious, impartial, and future-directed; the last of these matters
more than the question of who may have been to blame for bringing
the
issue to this Court in a less than perfect manner.
For the First
Applicant:

T Ngcukaitobi, M Bishop and YS Ntloko instructed by Kwinana and
Partners.
For the Second and Third
Applicants:
D
Mpofu SC, JM Berger and S Gaba instructed by Mabuza Attorneys.
For the Intervening
Party:

S Budlender, C McConnachie and L Zikalala instructed by Minde
Schapiro & Smith Inc.
For the First
Respondent:

NH Maenetje SC, G Ngcangisa and M Vassen instructed by the State
Attorney Cape Town.
For the Amicus
Curiae:

K Pillay SC, R Tulk and K Motla instructed by Webber Wentzel.
[1]
The DA is the largest opposition party in Parliament and its leader
is the Leader of the Opposition.  See section 57(2)(d)
of the
Constitution.
[2]
Economic
Freedom Fighters v Speaker of the National Assembly; Democratic
Alliance v Speaker of the National Assembly
[2016] ZACC 11
;
2016
(3) SA 580
(CC);
2016 (5) BCLR 618
(CC) (
EFF 1
).
[3]
Id at paras 82-3.
[4]
Media Statement by President Jacob Zuma in response to the
Constitutional Court judgment on the Nkandla security upgrades,

Union Buildings, published on
The Presidency
http://www.thepresidency.gov.za/speeches/media-statement-president-jacob-zuma-response-constitutional-court-judgement-nkandla.
[5]
Section 57(2)(d) of the Constitution provides
that the rules and orders of the National Assembly must provide for
“the recognition
of the leader of the largest opposition party
in the Assembly as the Leader of the Opposition”.
[6]
Rule 129 provides:
“Motions of
no confidence in terms of Section 102 of Constitution
(1)
A member may propose that a motion of no confidence in the Cabinet

or the President in terms of Section 102 of the Constitution be
placed on the Order Paper.
(2)
The Speaker must accord such motion of no confidence due priority
and
before scheduling it must consult with the Leader of Government
Business and the Chief Whip.
(3)
The motion must comply, to the satisfaction of the Speaker, with the

prescripts of any relevant law or any relevant rules and orders of
the House and directives and guidelines approved by the Rules

Committee, before being placed on the Order Paper, and must include
the grounds on which the proposed vote of no confidence is
based.
(4)
The Speaker may request an amendment of, or in any other manner
deal,
with a notice of a motion of no confidence which contravenes
the law, rules and orders of the House or directives and guidelines

approved by the Rules Committee.
(5)
After proper consultation and once the Speaker is satisfied that the

motion of no confidence complies with the aforementioned prescribed
law, rules and orders of the House and directives or guidelines
of
the Rules Committee, the Speaker must ensure that the motion of no
confidence is scheduled, debated and voted on within a
reasonable
period of time given the programme of the Assembly.
(6)
The debate on a motion of no confidence may not exceed the time
allocated
for it by the Speaker, after aforesaid consultation
process.
(7)
If a motion of no confidence cannot reasonably be scheduled by the

last sitting day of an annual session, it must be scheduled for
consideration as soon as possible in the next annual session.
(8)
Rules 120, 123 and 127 do not apply to motions of no confidence in

terms of this rule.”
[7]
United Democratic Movement v Speaker, National Assembly
[2017] ZACC 21
;
2017 (5) SA 300
(CC);
2017 (8) BCLR 1061
(CC) (
UDM
).
[8]
Section 167 provides:
“(4)
Only the Constitutional Court may—
…
(e)
decide that Parliament or the President has failed to fulfil a
constitutional obligation;…”
[9]
EFF 1
above n 2 at para 43.
[10]
Id.
[11]
Id.
[12]
Id.
[13]
Id at para 44.
[14]
De Lille v Speaker of the National Assembly
1998 (3) SA 430
(C) at para 1.
[15]
Speaker of National Assembly v De Lille MP
[1999] ZASCA 50;
[1999] 4 All SA 241 (A).
[16]
Section 55(2) is quoted below at [29] and section 42(3) at footnote
34 below.
[17]
Applicants’ founding affidavit at para 68.
[18]
Id at para 75.
[19]
First respondent’s answering affidavit at para 7.
[20]
UDM
above n 7 at paras 40-7.
[21]
Id at para 43.
[22]
Mazibuko N.O. v Sisulu N.O.
[2013] ZACC 28
;
2013 (6) SA 249
(CC);
2013 (11) BCLR 1297
(CC) (
Mazibuko
).
[23]
Id at para 44.
[24]
Applicants’ founding affidavit at para 76.
[25]
First respondent’s supplementary affidavit at para 120.
[26]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
;
[1984] 2 All SA 366
(A) (
Plascon-Evans
) at
634G-I.
[27]
Order of the Constitutional Court dated 2 August 2017 in the matter
of
Black Sash Trust v Minister of Social Development
[2017]
ZACC 20.
[28]
Applicant’s
supplementary affidavit at para 31.
[29]
EFF 1
above n 2 at para 93.
[30]
DA’s replying affidavit to the first respondent’s
answering affidavit at para 60.
[31]
Id at para 67.
[32]
Id at para 99.
[33]
First respondent’s supplementary affidavit at para 68.
[34]
Section 42(3) provides:
“The National Assembly is elected
to represent the people and to ensure government by the people under
the Constitution.
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.”
Section 55(2) provides:
“The National Assembly must
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
(ii)
any organ of state.”
[35]
Applicants’ founding affidavit at para 10.
[36]
Id at para 23.
[37]
Id.
[38]
UDM
above n 7 at para 40.
[39]
Mazibuko
above n 22 at para 43.
[40]
UDM
above n 7 at para 45.
[41]
Media Workers Association of South Africa v Press Corporation of
South Africa Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(AD) at 802.
[42]
Section 167(4) of the Constitution provides:
“Only the Constitutional Court
may—
(a)
decide disputes between organs of state in the national or
provincial
sphere concerning the constitutional status, powers or
functions of any of those organs of state;
(b)
decide on the constitutionality of any parliamentary or provincial

Bill, but may do so only in the circumstances anticipated in section
79 or 121;
(c)
decide applications envisaged in section 80 or 122;
(d)
decide on the constitutionality of any amendment to the
Constitution;
(e)
decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f)
certify a provincial constitution in terms of section 144.”
[43]
International Trade Administration Commission v SCAW South Africa
(Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) and
South African Association of Personal Injury Lawyers v
Heath
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC).
[44]
UDM
above n 7.
[45]
Section 102 of the Constitution provides:
“(1)
If the National Assembly, by a vote supported by a majority of its

members, 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

members, passes a motion of no confidence in the President, the
President and the other members of the Cabinet and any Deputy

Ministers must resign.”
[46]
Section 89(2) of the Constitution provides:
“Anyone who
has been removed from the office of President in terms of subsection
(1)(a) or (b) may not receive any benefits
of that office, and may
not serve in any public office.”
[47]
Section 58 of the Constitution provides:
“(1)
Cabinet members, Deputy Ministers and members of the National
Assembly—
(a)
have freedom of speech in the Assembly and in its committees,

subject to its rules and orders; and
(b)
are not liable to civil or criminal proceedings, arrest,
imprisonment
or damages for—
(i)
anything that they have said in, produced before or submitted
to the
Assembly or any of its committees; or
(ii)
anything revealed as a result of anything that they have said in,

produced before or submitted to the Assembly or any of its
committees.
(2)
Other privileges and immunities of the National Assembly, Cabinet

members and members of the Assembly may be prescribed by national
legislation.”
[48]
Democratic Alliance v Speaker of the National Assembly
[2016]
ZACC 8
;
2016 (3) SA 487
(CC);
2016 (5) BCLR 577
(CC) at para 47
(
Democratic Alliance
).
[49]
UDM
above n 7 at paras 74-5.
[50]
Section 42(3) of the Constitution provides:
“The
National Assembly is elected to represent the people and to ensure
government by the people under the Constitution.
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.”
[51]
UDM
above n [7].
[52]
Section 19(1) of the Constitution provides:
“Every citizen is free to make
political choices, which includes the right—
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.”
See
Ramakatsa v
Magashule
[2012] ZACC 31; 2013 (2) BCLR 202 (CC).
[53]
EFF 1
above n 2 at paras 97-9.
[54]
Id at para 100.
[55]
Id at paras 103-4.
[56]
Id at para 105.  This order included nine further paragraphs.
[57]
Rule 85 provides:
“(1)
No member may impute improper motives to any other member, or cast

personal reflections upon a member’s integrity or dignity, or
verbally abuse a member in any other way.
(2)
A member who wishes to bring any improper or unethical conduct on

the part of another member to the attention of the House, may do so
only by way of a separate substantive motion, comprising
a clearly
formulated and properly substantiated charge that in the opinion of
the Speaker prima facie warrants consideration
by the House.
(3)
Subrules (1) and (2) apply also to reflections upon the President

and Ministers and Deputy Ministers who are not members of the
House.”
[58]
Rule 26 provides:
“(1)
In exercising the authority of the Speaker, as provided for in the

Constitution and legislation and the rules of Parliament, the
Speaker must—
(a)
ensure that the National Assembly provides a national forum for
public consideration of issues, passes
legislation and scrutinises
and oversees executive action in accordance with Section 42(3) of
the Constitution;
. . .
(3)
The Speaker is responsible for the strict observance of the rules
of
the House and must decide questions of order and practice in the
House, such a ruling being final and binding as provided
for in Rule
92.
(4)
The Speaker must act fairly and impartially and apply the rules
with
due regard to ensuring the participation of members of all parties
in a manner consistent with democracy.”
[59]
EFF 1
above n [2] at para 7.
[60]
Section 57 of the Constitution 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 Assembly and its
committees
of minority parties represented in the Assembly, in a
manner consistent with democracy;
(c)
financial and administrative assistance to each party represented
in
the Assembly in proportion to its representation, to enable the
party and its leader to perform their functions in the Assembly

effectively; and
(d)
the recognition of the leader of the largest opposition party in
the
Assembly as the Leader of the Opposition.”
[61]
Section 57(1)(b) of the Constitution.
[62]
Section 57(2) of the Constitution.
[63]
Section 87 of the Constitution provides:
“When
elected President, a person ceases to be a member of the National
Assembly and, within five days, must assume office
by swearing or
affirming faithfulness to the Republic and obedience to the
Constitution, in accordance with Schedule 2.”
[64]
EFF 1
above n [2] at para 20.
[65]
Mazibuko
above n 22 at para 39.
[66]
Id at paras 42-7.
[67]
Id at para 41.
[68]
Rule 255 provides:
“Unless a
resolution establishing an ad hoc committee provides otherwise, a
question before an ad hoc committee is decided
when a quorum in
terms of Rule 162(2) is present and there is agreement among the
majority of the members present.”
[69]
Rule 254(1) provides:
“The
Assembly resolution establishing an ad hoc committee must either
specify the number of members to be appointed or the
names of the
members who are appointed.”
[70]
Mazibuko
above n [22] at para 62.
[71]
Id at para 61.
[72]
EFF 1
above n 2 at para 83.
[73]
Section 172(1) of the Constitution provides:
“(1)
When deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the

Constitution is invalid to the extent of its inconsistency; and
(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.”
[74]
EFF 1
above n [2] at para 103.
[75]
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 96.
[76]
Id at para 97.
[77]
Section 237 of the Constitution provides:
“All
constitutional obligations must be performed diligently and without
delay.”
[78]
Doctors for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
at para 38.
[79]
S v Makwanyane
[1995] ZACC 3, 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC).
[80]
Mazibuko
above n 22. .
[81]
EFF 1
above n 2 at para 93.
[82]
UDM
above n 7.  See
para 69 for instance.
[83]
See paras 47, 57, 60 and 61 of
Mazibuko
.
[84]
See [223].
[85]
Id.
[86]
This is true of adjudication in other spheres as well.  Compare
Phakane v S
[2017] ZACC 44
at para 61.
[87]
See [100] to [105].
[88]
See [222].
[89]
See above n 60.
[90]
In fact, the second judgment explicitly refrains from doing so.
See, for example, [170], [171] and [180].