/ 5 January 2018

Judges at odds over impeachment

Chief Justice Mogoeng Mogoeng presented a dissenting judgment on the matter of whether Parliament could be told how to conduct its business.
Chief Justice Mogoeng Mogoeng presented a dissenting judgment on the matter of whether Parliament could be told how to conduct its business.


Chief Justice Mogoeng Mogoeng’s extraordinary interruption during the handing down of the #ZumaImpeachment judgment was a distraction from what was a fairly straightforward judgment and order from the Constitutional Court.

For those who missed it: in the week between Christmas and New Year, the Constitutional Court announced it would hand down judgment in the Economic Freedom Fighters’ (EFF’s) case about Parliament’s constitutional duty to hold President Jacob Zuma to account following the court’s Nkandla judgment.

The judgment was handed down by Justice Chris Jafta, who had penned the majority judgment. There were four judgments, he said, and he would summarise each of them.

He summarised his own majority judgment, the minority judgment of Justice Raymond Zondo, and then moved on to summarise a dissenting judgment by Chief Justice Mogoeng Mogoeng.

He was one line into it when the chief justice interrupted him, handing him some paper — a document that he wanted read into the record, said Jafta. What followed was a summary of the chief justice’s blistering dissent, including the now infamous finding that the majority decision was a “textbook case of judicial overreach”.

It was not that the chief justice had forced Jafta to read his entire dissenting judgment but it seems that the summary handed to Jafta was different to the one that Jafta had begun to read out.

The moment was dramatic, as was the language used by Mogoeng.

But, although minority and dissenting judgments are important in the long-term development of the law and they are interesting, they do not direct what is to happen, however fiery their wording.

Instead, and particularly in this case, Mogoeng’s dissent — and the riposte by Justice Johan Froneman — may be more revealing of the state of affairs at the highest court than anything else. More on this later.

The majority judgment in the case is fairly simple.

Parliament is ordered to adopt specific rules for an impeachment process “without delay”; and it must also go ahead and subject Zuma’s conduct to scrutiny to determine whether “the president has breached section 89 (1)” — the section that sets out grounds for impeachment — without delay.

The judgment holds that the Constitution requires a specific procedure, and therefore a specific set of rules, for impeachment.

Unlike a motion of no confidence, impeachment — under section 89 of the Constitution — may only happen if one of three conditions is met: a serious violation of the Constitution or the law, serious misconduct or an inability to perform the functions of office.

This means there is a step preceding an impeachment debate and vote in Parliament — a process to determine whether any of those conditions has been met. The process must give the president the opportunity to be heard, said Jafta.

This step is implicit in the wording of section 89, he said.

It is not for the court to prescribe the process, but an ad hoc committee is not good enough.

Here, Jafta is answering Zondo, who found that, when an investigation was required for impeachment, an ad hoc committee — such as the recent Eskom and SABC ad hoc committees, added Mogoeng — would be able to do the job.

Zondo found that the rules of Parliament were flexible enough to accommodate an impeachment investigation through ad hoc committees, which have strong powers to summon witnesses and compel the production of documents.

Jafta disagreed, saying ad hoc committees make decisions “by agreement among the majority of the members present”, but the size of the committees are not set out in the rules. “Nor do they require that all parties be represented,” he said.

There is a risk that an impeachment complaint would not reach the assembly, he said. He did not answer Zondo’s and Mogoeng’s criticism that there is no evidence that Parliament has ever refused to establish a subcommittee to look into impeachment or of any attempt to frustrate an impeachment motion.

“Without rules defining the entire process, it is impossible to implement section 89,” said Jafta. Go and make rules, he instructs Parliament.

It should not be too much of a problem because Parliament had already begun to draft such rules and has gone quite far in the process, he added.

It emerged — a day before the hearing in a last-minute affidavit — that there were draft rules already in circulation, but what was holding up their adoption was the very parties before the court, as they had not responded to requests that they comment on the draft.

Zondo was highly unimpressed by this: “The applicants … have not taken this court into their confidence and explained to us why they came to court before they went back to the subcommittee and put their proposals to that subcommittee. In my view the most sensible response by this court to this is to insist that the applicants go back to that subcommittee and make their proposals to it and see whether any unconstitutional obstacles are put in their way.”

But, Jafta said, whether or not opposition parties had come to the party with their proposals on the draft rules did not absolve the National Assembly of its obligation.

There is a second part of Jafta’s judgment, answering the question: Did Parliament hold Zuma to account under section 89 of the Constitution?

[Seat of justice: There is room of disagreement, say Constitutional Court judges. (Delwyn Verasamy/M&G)]

It is not accurate to say, as the EFF said, that nothing had been done by Parliament, said Jafta. But all that had been done — motions of no confidence, question-and-answer sessions — were not good enough because they were not done in terms of section 89.

And the impeachment motion in March last year — which was voted on and defeated — was also insufficient because there was no “antecedent determination by the assembly to the effect that one of the listed grounds exists”. Parliament missed a crucial step, in other words.

If the motion had succeeded, it would have been unconstitutional, he said.

Mogoeng’s judgment is mostly focused on the first aspect of Jafta’s judgment. He was deeply concerned about the court being too prescriptive to Parliament about the process it should follow, saying the majority judgment is “specific about size, and representations, procedure” and this makes the process rigid and inflexible.

He also said a pre-investigation — the earlier step crucial to Jafta — may not always be warranted and Parliament should have a discretion regarding this.

Mogoeng also weighed in on the second aspect of Jafta’s judgment, saying Zuma had 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.”

Both Jafta and Froneman took a dim view of the way Mogoeng expressed his views. Jafta said: “The divergence of views … flows solely from different interpretations assigned to section 89 … This is not novel. It happens frequently in courts presided over by panels of judges.”

Froneman said: “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.”

Though it is not unusual for judges to disagree, and disagree vehemently, the tone of the judgments and the unusual interruption by the chief justice during the handing down of the judgment have raised questions about whether all is well among the justices of the highest court.

It appears that the judgments were handed down with undue haste and with no discernable reason for it. There are some typos and formatting issues — missing full stops and an order that starts at point seven — highly unusual for a Constitutional Court judgment that was not delivered urgently.

Far more significantly, Mogoeng’s judgment criticised the majority decision for setting a 120-day time limit for the adoption of impeachment rules and a 180-day time limit for the investigative process to determine whether Zuma had committed impeachable conduct.

“Rules are to be made within 120 days, which includes the festive period and Parliament’s recess period. And in effect the impeachment, to be initiated in terms of those rules, is only allocated 60 days — 180 days minus 120 days,” said Mogoeng.

The media summary of the majority decision — not binding on the court — also refers to 120 and 180 days. The majority judgment itself, however, does not. It says “without delay”.

The reason for this discrepancy is not clear but it is possible that an earlier draft of the majority judgment did specify time periods and it was changed at the last minute. If this is so, Mogoeng should have been able to amend his own judgment accordingly. He should also have — before going into open court — been able to amend the summary of his judgment prepared for the handing down of the judgment.

They say hard cases make bad law. The Zuma presidency has seen the courts being drawn into many hard cases — disputes that would have preferably been resolved elsewhere. The long-term consequences for the law made in this period will be judged by history.