In an unusual move during Friday’s majority judgment in which the Constitutional Court found that Parliament had failed to hold President Jacob Zuma accountable for the fiasco over the upgrades at his private Nkandla home, Chief Justice Mogoeng Mogoeng added that the judgment treaded on the contentious issue of separation of powers between the National Assembly and the judiciary.
As Justice Chris Jafta read out the majority judgment, Mogoeng handed him a page to read out and include in the record.
”The judgment is a textbook case of judicial overreach … a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament,” read Mogoeng’s take on the case.
”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.”
The court placed pressure on Parliament to act on the long-drawn Nkandla debacle. It found that the National Assembly, as headed by Speaker Baleka Mbete, failed to hold President Zuma accountable in the aftermath of the Nkandla saga.
It also found that a failure by the National Assembly to properly determine whether Zuma had breached section 89 of the Constitution boiled down to Parliament failing in its constitutional duties – that is to scrutinise and oversee the actions of the executive.
The highest court in the land further directed the National Assembly to comply with section 237 of the Constitution and make rules regulating the removal of a president in terms of section 89 “without delay”.
On the existing mechanisms in the National Assembly, Mogoeng said Zuma 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 be 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 acceptable notion of holding him accountable for Nkandla were nothing short of his actual removal from office.”
Mogoeng’s standpoint angered the Economic Freedom Fighters (EFF), with its secretary general Godrich Gardee calling the judgment ”unprecedented”.
Gardee said Mogoeng should have treated the judgment the same as he did the AfriForum versus the University of Free State judgment he delivered moments earlier on Friday, in which he dismissed an appeal to have Afrikaans reinstated as a medium of instruction at the institution.
”We consider his call for his own judgment to be read in full and on record as an abuse of power. He was visibly shaken and irritated, which left us disturbed,” Gardee told reporters outside the courtroom.
”It is unprecedented for such an irritation to be displayed by the holder of the highest judicial office, who tried to impose his own judgment into record. He should have placed his own judgment in the earlier ‘AfrikaansMustFall’ judgement… we really have to look at the decorum and conduct of the chief justice, he cannot be over celebrated, otherwise we are going to have a beast and monster out of him.”
The EFF nevertheless welcomed the judgment. Gardee said the red berets looked forward to Parliament reconvening next year so that Zuma could be held accountable.