IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO.: CCT 76/17
In the application of:
THE DEMOCRATIC ALLIANCE Intervening Party in re:
THE ECONOMIC FREEDOM FIGHTERS First Applicant
UNITED DEMOCRATIC MOVEMENT Second Applicant
CONGRESS OF THE PEOPLE Third Applicant and
THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
JAMES SELFE state under oath as follows:
1 I am the chairperson of the Federal Executive of the Democratic Alliance of
South Africa (“the DA”), and I represent it as a Member of the National
Assembly of the Parliament of the Republic of South Africa.
2 I am duly authorised to depose to this affidavit on behalf of the DA. 2
3 The facts contained in this affidavit are within my personal knowledge, unless
the context indicates otherwise, and are true and correct, to the best of my
knowledge and belief.
4 Where I make submission on the law, I do so on the advice of the DA’s legal
representatives.
INTRODUCTION AND OVERVIEW OF THIS APPLICATION
5 This is an application for leave to intervene in the application brought by the
Economic Freedom Fighters (“EFF”), the United Democratic Movement
(“UDM”) and the Congress of the People (“COPE”). I will refer to them
collectively as “the applicants”.
6 The DA seeks leave to intervene in support of the applicants. As the official
opposition in the National Assembly, the DA has a direct and substantial
interest in this matter, for reasons I will expand on below.
7 The DA was unable to bring this application at any earlier stage, given the
uncertainty surrounding the parties’ respective positions and the issues in
dispute. These matters have now been substantially clarified in the heads of
argument filed by the parties. Having now had the opportunity to read these
heads of argument (the last of which was filed just over a week ago, on Friday,
14 July 2017), the DA is in a position to bring this application and make
submissions that will be of assistance to this Court. 3
8 As clarified in their heads of argument, the applicants’ primary contention is that
the National Assembly has breached its constitutional duties to hold the
President accountable by failing to initiate a proper investigation to determine
whether there are grounds for the President’s impeachment under section 89 of
the Constitution.
8.1 The applicants contend that the Public Protector’s March 2014 report and
this Court’s judgment in EFF v Speaker of the National Assembly1 (“the
Nkandla judgment”) provide prima facie grounds for impeachment, which
require further investigation.
8.2 To date, the National Assembly has failed to conduct such an
investigation, in breach of its constitutional obligations under sections
42(3), 48 and 55(2) of the Constitution, read with sections 1(c) and 1(d)
of the Constitution.
8.3 The applicants seek declaratory orders to this effect and a supervisory
interdict, requiring the National Assembly to launch an appropriate
investigation process and to report back to this Court on its progress.
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.
1 [2016] ZACC 11; 2016 (3) SA 580 (CC). 4
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.
10 Therefore, the National Assembly has failed in its constitutional duty to put in
place effective accountability mechanisms to allow members to initiate
impeachment investigations. In this light, the Speaker cannot assert that the
applicants have approached this Court prematurely, before making use of
existing accountability mechanisms. This is because no proper mechanisms
exist.
11 In what follows, I address the following issues in turn: 5
11.1 First, I demonstrate why the DA has satisfied the requirements for leave
to intervene;
11.2 Second, I address the DA’s impeachment motion on 5 April 2016, to put
this motion in its proper context.
11.3 Third, I set out why further investigations are still required to determine
whether there are grounds to impeach the President under section 89(1)
of the Constitution.
11.4 Fourth, I provide further submissions on why impeachment proceedings
under section 89 of the Constitution should involve a proper investigation
and a fair hearing.
11.5 Fifth, I demonstrate that the National Assembly’s failure to put in place
any appropriate mechanisms to govern the section 89 impeachment
process is in breach of the National Assembly’s constitutional duties to
ensure effective accountability mechanisms.
11.6 Sixth, I make submissions on the remedy.
11.7 Finally, I briefly address the issues of exclusive jurisdiction and direct
access.
LEAVE TO INTERVENE
12 The test for intervention is whether it is in the interests of justice to grant leave
to intervene, which requires a direct and substantial interest in the matter.2
2 South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others [2017] ZACC 4 at para 9; National Treasury and Others v Opposition to Urban Tolling Alliance 6
13 The DA has a direct and substantial interest in several key respects.
13.1 First, as the official opposition in the National Assembly, the DA and its
members have a clear interest and duty to ensure that the President is
held accountable. The DA and its members will also be directly affected
by any order granted by this Court and will be integrally involved in giving
effect to any order.
13.2 Second, the DA brought the initial complaint that resulted in the Public
Protector’s Secure in Comfort report.3 The DA has a clear legal interest
in ensuring that the Public Protector’s findings are given full effect, by
holding the President to account.
13.3 Third, the DA was granted direct access in the Nkandla judgment. As a
party to those proceeding, the DA also has a direct and substantial
interest in giving effect to this Court’s order by holding the President
accountable for his proven violations of the Constitution.
13.4 Finally, all the parties to these proceedings have made repeated
reference to the DA’s section 89 motion to impeach the President, which
was debated and voted upon on 5 April 2016. The DA is best placed to
put this motion in its proper context.
and Others [2012] ZACC 18; 2012 (6) SA 223 (CC) at para 18; ITAC v SCAW [2010] ZACC 6; 2012 (4) SA 618 (CC) at para 10.
3 On 30 September 2012, the former parliamentary leader of the DA, Ms Lindiwe Mazibuko, submitted a formal complaint to the Public Protector. Ms Mazibuko lodged a further complaint with the Public Protector in terms of the Executive Members' Ethics Act, 82 of 1998 ("the Ethics Act') on 12 December 2012, requesting that the Public Protector investigate allegations that members of the President's family improperly benefited from the upgrades and that this constituted a violation of the Executive Ethics Code. Complaints were also submitted by members of the public. 7
14 The DA is mindful of the requirement that an intervening party in a
constitutional challenge must not only demonstrate a direct and substantial
interest in the matter, but must also advance submissions that are of assistance
to this Court and do not duplicate the submissions made by other parties.4
15 As a result, the DA decided not to intervene at an earlier stage in these
proceedings, as the affidavits filed by the parties created uncertainty about their
respective positions and the issues in dispute.
16 These issues have now been substantially clarified in the parties’ heads of
argument, which were filed on 30 June 2017 and 14 July 2017 respectively.
Having read these heads of argument, the DA is now able to advance
submissions that will be of assistance to this Court and do not duplicate the
submissions made by the other parties.
17 I do not anticipate that any of the parties will be prejudiced by the DA’s
intervention application. The DA intends to make submissions in favour of the
relief sought by the applicants, and does not seek any new relief. The bulk of
the submissions that the DA wishes to advance are either legal in nature or
involve the interpretation of facts that have already been placed before this
Court and which are not in dispute. The only new evidence that the DA wishes
to introduce is further context to the 5 April 2016 impeachment motion, which is
unlikely to be disputed.
4 Gory v Kolver NO [2006] ZACC 20; 2007 (4) SA 97 (CC) at para 13. 8
18 The hearing of this matter is scheduled for 5 September 2017, more than five
weeks after the filing of this application. I submit that this allows ample time for
the other parties to respond to the DA’s submissions, on timelines and subject
to directions that this Court deems appropriate. Indeed, precisely this approach
follows in a standard fashion in accordance with the rules of this Court where a
party seeks leave to be admitted as an amicus curiae in this Court within a
week of the respondent having filed heads of argument. Though the present
application is for intervention, rather than admission as an amicus curiae, the
DA has adopted essentially the same approach to timing.
19 For these reasons, I submit that it is in the interests of justice to grant the DA
leave to intervene as the fourth applicant in these proceedings. If leave to
intervene is granted, I request that this affidavit should also serve as an affidavit
in these proceedings.
20 I now proceed to outline the submissions that the DA intends to make, if it is
granted leave to intervene.
Comment [CM1]: Input needed here: Have we captured the DA’s position THE 5 APRIL 2016 IMPEACHMENT MOTION correctly?
21 Both the applicants and the Speaker have made repeated reference to the DA’s
section 89 motion to impeach the President, which followed in the wake of this
Court’s Nkandla judgment. 9
22 It is necessary to put this motion in its proper context and to explain the DA’s
reasons for seeking a debate and vote on impeachment, without a prior
investigation or hearing.
23 This Court handed down the Nkandla judgment on 31 March 2016. This
judgment was an excoriating indictment of the President’s conduct. Not only
had the President violated the Constitution, but he and his family had also been
unduly enriched by these constitutional violations. This required the National
Assembly to take urgent action to hold the President accountable.
24 On the same day that this Court handed down judgment, the leader of the DA,
Mr Mmusi Maimane, wrote to the Speaker to give notice of a motion to impeach
the President on grounds of a serious violation of the Constitution, in terms of
section 89(1)(a) of the Constitution. The leader of the DA then moved the
motion on 5 April 2016, after which it was debated and voted upon. A copy of
this motion is attached, marked Annexure JS 1.
25 The applicants correctly record that this motion was moved, debated and voted
upon without the National Assembly conducting a prior investigation or hearing
into these grounds of impeachment.
26 Had the National Assembly put in place proper mechanisms for impeachment
investigations and hearings, the DA would have made use of those
mechanisms. The DA agrees that such investigations and hearings ought to be
a part of any section 89 impeachment process, to determine whether there are 10
indeed grounds for impeachment and to allow the President a fair opportunity to
respond to the charges.
27 However, the National Assembly has failed to establish any appropriate
mechanisms to give effect to section 89 of the Constitution.
28 In the absence of these mechanisms, the DA had no option but to proceed
directly to a debate and vote because of the inherent urgency of the matter.
28.1 This Court’s judgment on 31 March 2016 and the resulting public outcry
over the President’s conduct necessitated action.
28.2 Impeachment procedures, like motions of no confidence, are inherently
urgent. This urgency is arguably even more acute in impeachment
processes. A President who has committed serious violations of the
Constitution or serious misconduct tarnishes that office and the
reputation of the country with each day that he or she remains in office.
29 As a result of this urgency, there was no time to become embroiled in debates
in the National Assembly about how to initiate a pre-impeachment investigation
and hearing, the composition and structure of this investigation, and other
technical matters. Such procedural debates would not only have created
delays, but would also have given the majority party ample opportunity to shield
the President by drawing out these procedural debates indefinitely.
30 All of this demonstrates that impeachment procedures under section 89 must
be set out in appropriate procedures, rules or legislation, in advance of actual 11
cases. This is necessary to ensure that the National Assembly is ready to
respond to urgent constitutional crises without delay. Ad hoc decisions on
impeachment procedures, during moments of crisis, are not sufficient to ensure
effective accountability.
31 As is clear from these events, the DA’s section 89 impeachment motion was an
attempt to work within the deficient accountability mechanisms that currently
exist.
32 Contrary to what the Speaker claims, this motion did not discharge the National
Assembly’s constitutional duties. Instead, this motion highlights the fact that
the National Assembly has failed in its constitutional duty to put in place proper
and effective accountability mechanisms.
33 The DA also agrees with the applicants that the debate on the impeachment
motion that took place on 5 April 2016 did not allow for a proper ventilation of
the facts. There is still a need for further investigation of the President’s
conduct to determine whether there are grounds for impeachment under
section 89(1) of the Constitution, as I will now explain.
THE NEED FOR FURTHER INVESTIGATIONS AND A FAIR HEARING
34 Section 89(1) of the Constitution provides that the President can only be
impeached on grounds of a “serious violation of the Constitution or the law”,
“serious misconduct” or an “inability to perform the functions of the office”. 12
35 The Public Protector’s report found that the President breached the
Constitution, the Executive Members’ Ethics Act 82 of 1998 and the Executive
Ethics Code. This Court further held that the President acted in breach of
section 83(b) of the Constitution, read with sections 181(3) and 182(1)(c), by
failing to comply with the Public Protector’s remedial action.5
36 However, the Public Protector and this Court refrained from expressing any
views on whether the President’s proven unconstitutional and unlawful conduct
was sufficiently “serious” to merit impeachment under section 89 of the
Constitution. That enquiry was rightly left to the National Assembly.
37 As the applicants have correctly argued, the determination of “seriousness”
under section 89 of the Constitution ought to involve a proper investigation and
a fair hearing. I expand on these reasons in the next section.
38 In this case, further investigation is needed into at least three matters to
determine whether the President’s proven unconstitutional and unlawful
conduct reached this threshold of seriousness.
39 First, the Public Protector’s findings that the President acted unconstitutionally
and unlawfully still leave further questions unanswered, which are necessary to
assess the seriousness of the President’s conduct.
39.1 The Public Protector found that the President and his family had unduly
benefited from the non-security upgrades to his home, that he was at all
5 Ibid at para 4 of this Court’s order. 13
material times aware of these upgrades, and that he tacitly accepted
these upgrades.
39.2 Many questions remain: Why did the President fail to act when he
became aware that state money was being spent on these non-security
upgrades? Why did he not question the vast amounts of state money
being spent on these upgrades? And why did he not immediately put a
halt to these upgrades and offer to repay the money?
39.3 These questions could only be answered by conducting further
investigations and by summoning the President to give evidence under
oath, in terms of the National Assembly’s powers under section 56(a) of
the Constitution.
40 Second, further investigation is also required to determine whether the
President lied to Parliament about the upgrades to his home.
40.1 The Public Protector’s report concluded that she was “unable to make a
finding” on whether the President lied to Parliament by denying that state
money was being spent on the non-security upgrades to his home6 and
in claiming that these upgrades were being paid for by the family, using a
bond.7
6 Public Protector’s Report, para 10.10.1.2, p 438: “I have accepted the evidence that he addressed Parliament in good faith and was not thinking about the Visitors’ Centre, but his family dwellings when he made the statement. While his conduct could accordingly be legitimately construed as misleading Parliament, it appears to have been a bona fide mistake and I am accordingly unable to find that his conduct was in violation of paragraph 2 of the Executive Ethics Code.”
7 Public Protector’s Report, para 10.10.1.7, pp 439 – 440: Regarding the allegation that the President may have misled Parliament and accordingly violated the Executive Ethics Code when he announced that the renovations at his private residence were financed through a bank mortgage bond, I am unable to make a finding. Although having established through the Register of Financial Interests that the President has declared a mortgage bond in respect of his private residence at Nkandla since 14
40.2 The Public Protector did not exonerate the President. Instead, she was
unable to make findings of unlawful conduct on the evidence available to
her at the time. This was a clear invitation to the National Assembly to
conduct further investigations.
40.3 The President's statement to the nation on 1 April 2016 (Annexure JM10
to the applicants’ founding papers) only served to compound the need for
an investigation. The President stated that this Court and the Public
Protector had cleared him of any dishonesty:
"I wish to confirm in line with the findings of both the court and the Public Protector, that I did not act dishonestly or with any personal knowledge of the irregularities by the Department of Public Works with regards to the Nkandla project."8
40.4 This statement is doubly false. Neither the Public Protector nor this
Court cleared the President of the charge of dishonesty. This attempt to
mislead the public reinforces the need for the National Assembly to
conduct a proper investigation.
41 Third, further investigation is needed to determine whether the President’s
unconstitutional refusal to comply with the Public Protector’s remedial action
constitutes a serious violation of the Constitution, in terms of section 89(1)(a) of
the Constitution.
42 The “seriousness” of the President’s conduct turns, in large part, on whether
the President was acting in bad faith, in order to avoid repaying the state for the
2009, I am not able to establish if costs relating to his private renovations were separated from those of the state in the light of using the same contractors around the same time and the evidence of one invoice that had conflated the costs although with no proof of payment.” 8 Annexure JM 10, p 160. 15
undue enrichment that he and his family received. This necessitated further
investigation.
43 This Court reached no conclusion on whether the President had acted in bad
faith, but speculated that that the President “might” have been acting on
incorrect legal advice:
“[83] The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers. The second respect in which he failed relates to his shared s 181(3) obligations. He was duty-bound to, but did not, assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action. He might have been following wrong legal advice and therefore acting in good faith. But that does not detract from the illegality of his conduct, regard being had to its inconsistency with his constitutional obligations in terms of ss 182(1)(c) and 181(3) read with s 83(b).”
44 In his address to the nation on 1 April 2016, the President specifically denied
that he had acted in bad faith in refusing to comply with the Public Protector’s
remedial action. He appears to have seized on this passage of the Court’s
judgment by asserting that he had indeed been acting on legal advice. He also
asserted that he relied on the Western Cape High Court’s October 2014
judgment in DA v SABC,9 which held that the Public Protector’s findings are not
binding. The President stated the following
“I wish to emphasise that I never knowingly or deliberately set out to violate the Constitution, which is the supreme law of the Republic.
"The finding by the court that my failure to comply with the remedial action taken against me by the Public Protector is inconsistent with the Constitution and therefore invalid, flows from the fact that I initially followed a different approach.
9 2015 (1) SA 551 (WCC). 16
I had earlier adopted a different approach based on the judgment of the Western Cape High Court.
…
While correct in law at the time, the approach was subsequently demonstrated to be contrary to the Constitution as stated by the Constitutional Court yesterday.
I wish to reiterate that any action that has been found not to be in keeping with the Constitution happened because of a different approach and different legal advice.
It all happened in good faith and there was no deliberate effort or intention to subvert the Constitution on my part."10
45 The President’s statement raises a host of questions which remain
unanswered:
45.1 Did the President receive legal advice?
45.2 Who provided that legal advice?
45.3 What was the content of that advice?
45.4 Most significantly, when did the President receive that advice? There is
every possibility that the President unconstitutionally refused to
implement the Public Protector’s remedial action and only then sought
legal advice to justify his actions.
46 The President’s reliance on the Western Cape High Court’s judgment also
provides a strong basis to suspect the President’s motives.
46.1 The Public Protector’s report was released on 14 March 2014, more than
six months before the Western Cape High Court’s judgment was handed
10 Annexure JM 10 to the applicants’ founding papers, Record pp 157 – 161. 17
down in October 2014. In that six-month period, the President could not
have been acting in reliance upon a judgment that had not yet been
written.
46.2 More significantly, the Western Cape High Court’s judgment was
overturned by the Supreme Court of Appeal in its judgment in SABC v
DA,11 handed down on 8 October 2015. That judgment confirmed that
the Public Protector’s findings and remedial action are indeed binding,
unless reviewed and set aside by a court.
46.3 More than three months elapsed from the date of the SCA’s judgment
until the President’s decision to capitulate in the Constitutional Court, in
February 2016. No explanation is provided for why the President did not
take immediate action to comply with the Public Protector’s report
immediately after becoming aware of the SCA’s judgment. There has
also been no explanation for why the President decided to capitulate a
mere eight days before the hearing in the Constitutional Court, after
having previously mounted a vigorous defence.
46.4 The President’s conduct in the six months before the Western Cape
judgment and in the months, that followed the SCA’s judgment therefore
requires further investigation and interrogation to determine his true
motives in refusing to comply with the Public Protector’s report.
47 Therefore, there is a clear need for further investigation to determine whether
the President was merely acting on legal advice or whether his actions were
11 [2015] ZASCA 156; 2016 (2) SA 522 (SCA). 18
driven by the desire to protect his ill-gotten gains. This would necessarily
involve summoning the President to testify under oath on these matters, as part
of a broader impeachment investigation.
48 The DA agrees with the applicants that the mere fact that the President has
now paid back a portion of the cost of the non-security upgrades, in compliance
with this Court’s order, does not diminish the need for further investigations into
his conduct.
INVESTIGATIONS ARE A NECESSARY COMPONENT OF IMPEACHMENT PROCEEDINGS
49 The DA supports the argument that impeachment processes under section 89
of the Constitution necessarily require proper investigations and a fair hearing.
This is for three reasons.
50 First, impeachment under section 89 can only take place on the grounds
specified in section 89(1)(a)-(c): a “serious violation of the Constitution or the
law”, “serious misconduct”, or “an inability to perform the functions of the office”.
50.1 This requires a determination of whether there are grounds for
impeachment under section 89(1), before the members of the National
Assembly can exercise a meaningful vote on whether to remove the
President from office. That can only be achieved by a formal
investigation to uncover the full facts, before the matter is put to a vote.
50.2 Even if another body, such as this Court or the Public Protector, has
already established that the President acted unconstitutionally or 19
unlawfully, investigations are still required to determine whether these
acts are sufficiently culpable to meet the section 89(1) test of
“seriousness”.
50.3 Determining whether these acts are “serious” is a value judgment, but
one which can only be properly formed on the basis of all relevant facts.
These facts would include the President’s motives in breaching the
Constitution or committing misconduct, his knowledge of unlawfulness,
whether he derived undue benefits from his actions, and so on.
51 Second, impeachment on the grounds of a serious violation of the Constitution
or serious misconduct carries severe punitive consequences. The President is
not only removed from office but also forfeits all benefits of that office and is
barred from holding any public office in future. Given the severity of these
consequences, and the shame and ignominy this entails, this would require that
the President be afforded some opportunity to respond to the charges and to
challenge evidence.
52 Third, the impeachment procedures adopted in other countries reinforce the
need for a formal investigation and a hearing as part of the section 89
impeachment process.
53 In a survey of impeachment processes in more than 90 countries, published in
the Max Planck Encyclopaedia of Comparative Constitutional Law, the authors
reach the following conclusions:
"[26] Regardless of which model a country follows, the whole impeachment process is divisible into two stages: (1) impeachment 20
proper (or indictment); and (2) trial. Impeachment proper is that stage where one public institution, usually the legislative, formally charges an official of an impeachable offence or offences. Trial, … determines the guilt or innocence of the respondent official, and imposes the penalty, eg removal from office.
[27] In the impeachment proper, the body in charge receives an impeachment complaint; it would then assess the sufficiency of the complaint (usually through a committee) or launch its own investigation. The charges, conventionally called ‘Articles of Impeachment’ … will then be drafted, presented to, and endorsed by the full membership of the body. Once this preliminary step is accomplished, the body votes on the recommendation. … [A]lmost all constitutions require at least a majority vote before an official can be formally impeached or charged …. [D]ifferent threshold requirements reflects a balancing of the inherent tension between the public’s right to demand government accountability and the need for government to have a certain amount of stability and freedom from harassment
[28] Once charges are approved or authorized by the legislature (or other public body in charge) in the first stage, the public official is considered to have been ‘impeached.’ The charges are then embodied in a resolution or ‘Bill of Impeachment’. Trial follows; this is handled either by the same public body, the upper chamber of Congress, a high court, or a special body. …
[29] … After receiving the evidence and hearing the arguments, the trying body votes on each charge or Article of Impeachment. Most constitutions … require at least a two-thirds vote of the entire body (eg Armenia, Ecuador, Philippines, Russia, Sierra Leone, and Seychelles), or two-thirds of those present (eg Argentina, Colombia, Mexico, and United States), before an official can be removed from office. Some require an even greater number (such as Ukraine, Dominican Republic, Guyana, Singapore, and Turkey, which all require three-quarters of membership).”
I attach a copy of this chapter, marked Annexure JS 2.
54 In their heads of argument, the UDM and COPE have made reference to the
examples of the United States, Brazil, and South Korea where impeachment
processes involve an investigation and a hearing. These processes are
consistent with the general features of impeachment processes outlined in the
quoted passage. 21
55 Examples from other African countries also show that trial-like processes
almost always precede a vote on impeachment. For instance:
55.1 In Malawi, the Standing Orders of the Malawian Parliament give the
National Assembly the power to indict the President. If the President is
indicted, the Chief Justice must then appoint a tribunal to investigate
charges and to report back to the National Assembly. The President is
entitled to appear before the tribunal and to be legally represented during
these proceedings. If the tribunal concludes that there is a prima facie
case for impeachment, the matter is referred back to the National
Assembly for a vote. The President is removed from office if two-thirds
of the National Assembly vote in favour of removal.
55.2 In Kenya, section 145 of the 2010 Kenyan Constitution allows the
Kenyan Senate to appoint a special committee to investigate charges of
impeachment against the President. The President is afforded the
opportunity to appear before this special committee to respond to the
charges. If the special committee finds that there are grounds for
removal then the matter is put to a vote and the President is removed
from office if two-thirds of the Senate vote in favour.
55.3 In the Seychelles, the National Assembly is empowered to pass a motion
proposing that the Constitutional Court investigate specific allegations
that the President has committed a violation of the Constitution. The
Constitutional Court investigates the allegations and allows the President
to respond. If the Constitutional Court finds that there is a prima facie
case, it provides a report to the Speaker which is then put to a vote by 22
the members of the National Assembly. If the findings of the
Constitutional Court’s report are adopted, the president will cease to hold
office.
55.4 In Egypt, the members of the House of Representatives pass a motion to
impeach the President following an investigation. The Constitution then
makes provision for a special court to be convened to conduct a trial. If
convicted, the President is then removed from office.
55.5 In Zimbabwe, the Senate and National Assembly pass a motion on
whether the President has violated any of the provisions in section 97 of
the Constitution of Zimbabwe, 2013. If the motion is passed, a joint
committee of the Senate and National Assembly is established to
investigate the allegations. If the joint committee recommends removal
and two thirds of the members of the National Assembly and Senate vote
in favour, then the president will be removed from office.
55.6 I attach a more detailed summary of the impeachment procedures in
these countries, together with the relevant legal provisions, marked
Annexure JS 3.
56 These examples show substantial variation in the way that investigations and
hearings are conducted in each country. However, all of these other African
countries recognise the need for these investigations and hearings.
57 Section 89 of the Constitution is silent on these procedures. It is therefore
necessary for the National Assembly to develop appropriate mechanisms to 23
give proper effect to section 89. The DA does not ask this Court to dictate to
the National Assembly precisely how it should structure these mechanisms for
impeachment investigations and hearings. Instead, the DA contends that the
absence of such mechanisms is constitutionally impermissible, for reasons I
now explain.
THE FAILURE TO PUT IN PLACE EFFECTIVE MECHANISMS TO INITIATE IMPEACHMENT INVESTIGATIONS
58 The applicants have concentrated their fire on the National Assembly’s failure
to take action to launch impeachment investigations. The DA agrees that this
inaction is unconstitutional. But the unconstitutionality goes further.
59 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 individual members of
the National Assembly to initiate such investigations and hearings.
60 In UDM v Speaker of the National Assembly12 (the “Secret Ballot judgment”)
this Court held that the combined effect of sections 42(3) and 55(2) of the
Constitution is that the National Assembly “has the obligation to hold Members
of the Executive accountable, put effective mechanisms in place to achieve that
objective and maintain oversight of their exercise of executive authority.”13
12 [2017] ZACC 21 (22 June 2017). 13 Ibid at para 40. 24
61 This entails that the National Assembly must not only take action to ensure
oversight and accountability, but it must also put in place effective mechanisms
to facilitate proper accountability and oversight.
62 Impeachment procedures and motions of no confidence are two of the most
vital means of holding the President accountable. These are not merely tools
for ensuring accountability, but they are also rights vested in each member of
the National Assembly that may not be frustrated or unreasonably delayed.
62.1 This Court has held that the power to bring a motion of no confidence in
the President, in terms of section 102(2) of the Constitution, is a right
granted to each member of the National Assembly.14
62.2 This reasoning must apply with equal force to motions to commence
impeachment proceedings, including investigations and fair hearings,
under section 89 of the Constitution.
62.3 Furthermore, this Court has held that the right to bring a motion of no
confidence, and the accountability it engenders, are rendered
“inconsequential in the absence of an effective operationalising
mechanism to give it the fatal bite, whenever necessary.”15 Moreover,
the National Assembly may not “deny, frustrate, unreasonably delay or
postpone the exercise of that right”.16
14 Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC) at paras 44 – 45. 15 Secret Ballot judgment at para 43. 16 Mazibuko at paras 47, 60. 25
62.4 By this same reasoning, section 89 of the Constitution also requires an
“effective operationalising mechanism” which does not frustrate or
unreasonably delay the proper exercise of this right.
63 The National Assembly’s failure to put in place appropriate mechanisms
governing impeachment procedures, including impeachment investigations and
hearings, is an impediment to swift, effective and fair action to hold the
President accountable.
64 As I have noted above, impeachment procedures, like motions of no
confidence, ought to be treated as inherently urgent matters. The fate of a
President who has committed serious breaches of the Constitution must be
decided with all appropriate haste. This is necessary to contain and prevent
any further damage to the country in having a compromised President in power.
65 Impeachment proceedings are also inherently disruptive, as they create
uncertainty as they unfold and also disrupt the day-to-day business of
government. It is therefore necessary to commence and conclude these
proceedings, including investigations and a fair hearing, as swiftly as
circumstances allow.
66 Given the inherent urgency of these matters, it is essential that the procedure
for initiating, conducting and concluding impeachment investigations and
related procedures be determined in advance, as far as possible, in legislation
or rules. These procedural matters would include, inter alia: 26
66.1 The type of body that will conduct the impeachment investigations, such
as a committee of the National Assembly, a specially appointed
prosecutor, or some other external body;
66.2 The composition of the body that will hear evidence and afford the
President a hearing, which would need to allow for fair representation of
opposition parties;
66.3 The timelines for investigations and hearings;
66.4 The rights afforded to the President to present and contest evidence; and
66.5 The manner in which findings will be presented to the National Assembly
before a vote.
67 Ad hoc decisions on these complex impeachment procedures, during times of
crisis, will generally stand in the way of swift action. Squabbling over procedural
technicalities may delay the impeachment process indefinitely. There is also the
danger that some members may intentionally use these procedural debates as
an opportunity to stymie and delay an investigation and final vote on
impeachment.
68 Impeachment procedures created in times of crisis are also less likely to be fair
and balanced. Crises do not lend themselves to clear-sighted decision-making.
Factions vying for or against the President’s removal may also seek to shape
the impeachment procedures in a way that will produce their favoured outcome.
Therefore, these procedures need to be determined in advance of actual cases,
as far as possible, to ensure fairness and objectivity. 27
69 For these reasons, the National Assembly’s failure to put in place appropriate
mechanisms to govern impeachment proceedings, including investigations and
hearings, is in breach of its constitutional duty to ensure effective accountability
mechanisms. This also frustrates and unreasonably delays the exercise of the
right to bring motions to commence impeachment proceedings.
REMEDY
70 The National Assembly’s unconstitutional conduct takes the form of an
omission. The constitutional defect does not reside in any specific provision of
existing legislation or rules governing procedures in the National Assembly.
Instead, the primary defect is the National Assembly’s failure to create any
appropriate mechanisms to give proper effect to section 89 of the Constitution.
71 Prayers 2 and 4 of the applicants’ notice of motion amply cover the National
Assembly’s unconstitutional conduct.
71.1 Prayer 2 seeks a declaration that the National Assembly has “failed to
put all appropriate mechanisms and processes in place to hold the
[President] accountable for violating the Constitution in failing to
implement the report of the Public Protector, dated 19 March 2014".
71.2 Prayer 4 then seeks a declaration that this failure “[infringes] sections
42(3), 48 and/or 55(2) read with sections 1 (c) and 1(d) of the
Constitution.” 28
71.3 This relief clearly encompasses the National Assembly’s failure to put in
place appropriate procedures for impeachment proceedings, including
impeachment investigations and hearings.
72 If this Court finds that it is necessary to grant further orders, including in relation
to the National Assembly’s failure to create any appropriate mechanisms to
give proper effect to section 89 of the Constitution, then the DA submits that
those orders would fall within this Court’s broad remedial power to grant just
and equitable relief. This will be addressed further in legal argument.
EXCLUSIVE JURISDICTION AND DIRECT ACCESS
73 The DA agrees with the applicants’ submissions that this matter falls within the
exclusive jurisdiction of this Court or, at the very least, qualifies for direct
access. This matter has already been amply canvassed in the applicants’
heads of argument and the DA does not propose to repeat those submissions.
CONCLUSION
74 For the reasons presented above, I request that this Court grant the relief
sought in the attached notice of motion, including such further directions as this
Court considers necessary or appropriate concerning the DA’s participation in
these proceedings.
______JAMES SELFE
29
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at CAPE TOWN on this the 24th day of July 2017, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
______COMMISSIONER OF OATHS