Mbete could have done more to institute proceedings on Nkandla: counsel

Speaker of the National Assembly Baleka Mbete could have "done more" to institute proceedings to see whether President Jacob Zuma should have been impeached following Zuma's use of state funds for his private Nkandla home.

This was an admission of her advocate Hamilton Maenetje SC in the Constitutional Court on Tuesday.

The Economic Freedom Fighters (EFF)‚ United Democratic Movement (UDM)‚ Congress of the People (Cope) and the Democratic Alliance on Tuesday asked the Constitutional Court to force Parliament to set up a committee that will interrogate whether Zuma lied to Parliament about Nkandla and whether he needs to be impeached.

The parties argued that the Speaker failed to uphold her "constitutional mandate" to hold Zuma accountable‚ after the court ruled last year that he had failed to uphold the Constitution following his failure to implement the Public Protector’s report in 2014.

Zuma was ordered by the Public Protector to take steps to determine the reasonable cost of the measures for non-security upgrades at his Nkandla home and pay a reasonable cost of the measures.

Zuma did not do that‚ forcing the Economic Freedom Fighters (EFF) to go to the Constitutional Court last year to order the president to comply with the remedial action.

Chief Justice Mogoeng Mogoeng asked Maenetje if Mbete was not duty bound as Speaker and leader of Parliament to start parliamentary proceedings into Zuma's fitness to hold office after the Nkandla court case found he did not uphold or defend the Constitution.

Maenetje said: "She could have done so".

However‚ Maenetje said she still did not breach her constitutional obligation. Maenetje argued that all members of parliament had a duty to hold Zuma to account.

"Ultimately if there is a failure‚ that failure is of the collective responsibility of the National Assembly. It must fall to the National Assembly‚ not the Speaker."

The EFF‚ DA‚ UDM and Cope had argued that Mbete "frustrated" their efforts to hold Zuma accountable‚ after he used public funds for his private Nkandla home.

The parties want the Constitutional court to order parliament to begin process to "scrutinise" the president‚ setting up an ad hoc committee to hold a parliamentary-style trial where Zuma must testify under oath in an impeachment hearing.

UDM advocate Dali Mpofu SC argued that the 27 question and answer sessions to Zuma about the Nkandla issue were "deficient". 

EFF advocate Tembeka Ngcukaitobi said parliamentary rules made Mbete specifically liable to hold Zuma to account and she did not do this. 

"It is a duty uniquely imposed on the Speaker in the rules home-grown in Parliament. She had a duty and she frustrated the discharge of this very function‚" Ngcukaitobi said.

DA advocate Stephen Budlender argued that Zuma's offence was a grievous moral breach so that a hearing had to be held in Parliament on the matter‚ before an impeachment vote.

"Because of failure of National Assembly [ to hold Zuma to account]- it would appropriate [ for the court] to order the Speaker to step in."

The judges frequently asked advocates during a marathon 10 hour session why it was the court's job to intervene in parliamentary proceedings.

Ngcukaitobi said: "The reason that a political judgment (to impeach has) to be made does not insulate it from judicial scrutiny".

Mogoeng was incredulous that Zuma would say anything different in a hearing than what he said in 27 answers and questions sessions about Nkandla.
"We know what he thinks‚ don’t we."

Justices were reluctant to get involved in parliamentary processes citing separation of powers. 

Mogoeng said: "We are three arms of the state and we each have a role to play in making our constitution function."

He also told Ngcukaitobi that the case was not about processes and rules of parliament not being followed but a way to get rid of Zuma.

"Your client ( EFF) wants to have the president removed from office.

The court reserved judgment.