Chief Justice Mogoeng Mogoeng. Picture: HALDEN KROG
Chief Justice Mogoeng Mogoeng. Picture: HALDEN KROG

Chief Justice Mogoeng Mogoeng’s view that the Constitutional Court judgment in the so-called impeachment case is judicial over-reach, has been described as "misplaced and unfortunate" in the majority judgment of the court.

The extreme difference of views on the judgment was notable in the four judgments penned on the case that looked at, among other things, if Parliament fulfilled its constitutional duties in holding President Jacob Zuma to account following the so-called Nkandla judgment in 2016.

Mogoeng wrote a dissenting judgment on the matter, which was read out in full in the apex court on Friday. In it, he described the judgment as a "textbook case of judicial over-reach", saying it was a "constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament".

Justice Chris Jafta said the divergence of views raised was quite normal. "But what is unprecedented is the suggestion that the construction of the section embraced by the majority here constitutes ‘a textbook case of judicial over-reach’ The suggestion is misplaced and unfortunate," the judgment written by Jafta read.

Six of the apex court’s justices concurred with the majority judgment by Jafta in which it was found, among other things, that Parliament’s failure to determine whether President Jacob Zuma breached the Constitution in the way he dealt with the public protector’s Nkandla report, and violated the constitutional duty resting with the National Assembly to scrutinise and oversee the actions of the executive.

The Court ordered that the National Assembly’s failure to make rules regulating the removal of the President in terms of Section 89 of the Constitution, which deals with impeachment, was a violation of this section, and that Parliament now has to make rules for this section without delay.

The majority held that any process for the removing the President must be preceded by a preliminary enquiry, during which the National Assembly must determine if the listed grounds for impeachment exist. Without rules defining the impeachment process set out in Section 89, "it is impossible" to implement it, Jafta wrote.

The Court also ordered that the National Assembly comply with the Constitution and fulfil its obligation to determine if the President has breached the Constitution. The majority judgment held that the current rules of the National Assembly do not cater for impeachment proceedings.

Three justices, which include Mogoeng, concurred with deputy chief justice Ray Zondo’s dissenting judgment, in which he said that the National Assembly had not failed to put in place mechanisms that could be used to hold the President to account.

It was also made clear that the national assembly had failed to hold Zuma to account following the Nkandla judgment, in which it was found he did not uphold, defend and protect the Constitution in the way he dealt with the public protector’s report on his Nkandla homestead.

Three justices, which include Mogoeng, concurred with deputy chief justice Ray Zondo’s dissenting judgment, in which he said that the National Assembly had not failed to put in place mechanisms that could be used to hold the President to account. The majority judgment found that an ad hoc committee would not be an effective vehicle to deal with the matter, while Zondo's judgment said the majority judgment failed to explain why they accepted that the DA was correct on this, while the acting speaker in parliament, as well as the EFF, UDM and Congress of the People (COPE) all said it could be suitable for a Section 89 procedure.

Mogoeng, besides supporting Zondo’s dissenting judgment, wrote the separate dissenting judgment, which he felt was necessary given the "extroardinary nature and gravity of this assertion", that it is judicial over-reach. He said 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:.

He also said it is "insensitive" to the doctrine to hold that impeachment grounds always be determined by the Assembly before the debate and voting on a motion of impeachment could take place. He further differed on whether the President has been held accountable for the Nkandla debacle, saying it has been done "almost exhaustively".

Froneman said there is nothing wrong in substantive debate being robust, "but to attach a label to the opposing view does nothing to further the debate". He added that he does not agree with the reasoning of both Mogoeng and Zondo.

"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," Mogoeng wrote.

Justice Johan Froneman, who concurred with the majority judgment, also penned a separate judgment, which was concurred with by six other justices, including Jafta himself, to address Mogoeng’s own dissenting judgement, as he said it should not be left unanswered.

Froneman said there is nothing wrong in substantive debate being robust, "but to attach a label to the opposing view does nothing to further the debate". He added that he does not agree with the reasoning of both Mogoeng and Zondo in their judgments, but said he does not believe the outcome is due to anything but "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 they propose does not mean I consider them to have abdicated their responsibility to ensure the National Assembly acts in accordance with the Constitution," Froneman wrote.

He said the majority judgment does nothing more than interpret Section 89 of the Constitution and direct the National Assembly to act in accordance to 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," Froneman wrote.

He added that whether the order the majority judgment achieves its aim "is for history to determine".

The EFF, who was one of the applicants in the matter together with the UDM and COPE, expressed their disappointment at the conduct of Mogoeng during the handing down of the judgment on Friday.

"We respect and affirm, even celebrate his right to differ with the majority of the justices on judgments. However, it cannot be right that he interrupted Justice Jafta’s prepared judgment and openly forced him to read his full submission as opposed to a summary," Mbuyiseni Ndlozi, EFF spokesman said in a statement.

"When justices fight in full view of cameras it brings the integrity of the court and their judgments into disrepute," Ndlozi said. "The Chief Justice’s actions may unwittingly create doubt in the minds of the public about the majority judgment of the court, which, even if it is not unanimous, must still be respected and fully complied with. We hope the Chief Justice will find it in his heart to correct his conduct as it has potential to cast a shadow of doubt that just because he, as the head of the Court, does not agree with judgments, they have to be handed down accompanied by a signature of his irritation."

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