/ 2 January 2018

Mogoeng’s ‘very serious’ attack on majority judgment difficult to comprehend

Chief Justice Mogoeng Mogoeng
In last week’s webinar on global racial tensions hosted by The Jerusalem Post Chief Justice Mogoeng Mogoeng expressed support for the state of Israel guided by his Christian beliefs and biblical texts. (Madelene Cronjé)

When does a court overreach and thus intrude into a domain exclusively reserved for the executive or the legislature? In an unusually harsh minority judgment, Chief Justice Mogoeng Mogoeng was clear that the majority of the Constitutional Court had done just that in ordering Parliament to introduce a mechanism to deal with the possible impeachment of President Jacob Zuma.

The case was, at its core, fairly simple. In its Nkandla judgment, the court had found that the president had failed to uphold, defend and respect the Constitution as the supreme law. On behalf of a unanimous court, Mogoeng had written: “The failure was manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers.”

Section 89 of the Constitution therefore becomes important. It provides that the National Assembly, by a resolution adopted by at least two thirds of its members, may remove the president from office on the grounds of, inter alia, a serious violation of the Constitution or the law.

Before the Constitutional Court it was argued that the National Assembly had failed to put in place mechanisms to hold the president accountable for his constitutional breaches as found by the court in the Nkandla case. It was accepted by all justices that the National Assembly, in terms of section 59 of the Constitution, has the power to control its internal proceedings and procedures and that it can make rules and orders concerning its mandated business.

The minority judgment, written by Deputy Chief Justice Raymond Zondo, provided a detailed account of the manner in which the National Assembly, through the speaker, can appoint an ad hoc committee to deal with the question of a possible case of impeachment. 

He further found that, because the court had already found that the president had committed a clear breach of his constitutional obligations, there was no need for an ad hoc committee to investigate whether there had been a breach of the Constitution. That the National Assembly had then deliberated on the issue and decided by a majority that there was no basis to impeach the president was therefore the end of the matter.

Justice Chris Jafta, on behalf of the majority, found that section 89 did require a prior investigation as to whether the impugned conduct of the president constituted conduct sufficiently serious to justify impeachment. As he wrote: “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.”

For this reason, Jafta held that there was an implicit obligation imposed upon the National Assembly to make rules specifically tailored for the impeachment process. Of this and the consequent order, that the National Assembly introduce such rules and apply them to the president’s conduct in respect of Nkandla, Mogeong, however, said: “This 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.”

The substance offered by the chief justice is set out in a number of paragraphs best encapsulated in the following:

“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.”

This is a very serious attack on the majority judgment and, unsurprisingly, it elicited a response from Justice Johann Froneman: “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. 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.”

It is somewhat difficult to fully comprehend why a finding that the National Assembly should introduce rules to properly regulate a process that vindicates the express constitutional provision of impeachment of a president constitutes so egregious an overreach.

The majority judgment does not touch on policy issues and, not that long ago, in the Mazibuko case, the Court ordered the National Assembly to introduce rules to ensure that a motion of no confidence could be held. Could it be that Mogoeng is looking to the future and the possibility of a level of governance where it would be counterproductive to the democratic development of the country for courts to play as active a role as they have under the constitutional delinquency of the Zuma era?