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How we got to the ConCourt hearing Zuma’s impeachment case

29 December 2017 - 10:10 By Claudi Mailovich
The Constitutional Court in session. File photo
The Constitutional Court in session. File photo
Image: JAMES OATWAY

Almost two years after the Constitutional Court’s Nkandla judgment‚ SA’s apex court will rule on Friday on whether it will direct Parliament to conduct an investigation into President Jacob Zuma’s conduct in the matter.

It was on March 31 2016 that the court ruled that Zuma had not upheld‚ protected and defended the Constitution in the way he dealt with the public protector’s report on his Nkandla homestead.

Since then‚ it is argued‚ nothing has been done by the speaker of the National Assembly to initiate steps to hold Zuma to account‚ which has resulted in a court battle in front of the justices of the Constitutional Court.

The court will rule on Friday morning on this application brought by the Economic Freedom Fighters (EFF)‚ the United Democratic Movement (UDM) and the Congress of the People (COPE) in 2017. The Democratic Alliance was later joined as an intervening party‚ while Corruption Watch was admitted as an amicus curiae.

In the notice of application‚ EFF leader Julius Malema said in his founding affidavit that the National Assembly‚ under the leadership of speaker Baleka Mbete‚ had failed to take any action in response to the 2016 judgment of the Constitutional Court and that the application seeks to compel the National Assembly to fulfil its constitutional functions to scrutinise and to inquire into the conduct of the president.

Malema said in his affidavit that the EFF had made numerous demands of the speaker to take steps to hold Zuma accountable‚ but that it was "all in vain".

He made it clear that the multiple motions of no confidence against the president that followed the judgment did not count as action by the National Assembly‚ as was argued by the speaker‚ because these motions were brought by opposition parties.

His affidavit was confirmed by Cope and the UDM.

It is important to note that the applicants are seeking relief against the speaker‚ rather than directly against Zuma. The issue at hand for the opposition parties that brought the application is Parliament and its inaction in holding the president to account on the matter.

It does‚ however‚ affect SA’s number one citizen directly‚ and he is cited as the second respondent because he is an interested party.

The parties have asked the court to‚ first‚ direct the speaker to put appropriate processes and mechanisms in place to hold the president accountable for his conduct that arose from and is incidental to the public protector’s 2014 report on Nkandla.

The parties asked that these processes must include mechanisms to inquire into and determine whether and to which extent the president’s violation of the Constitution and/or his conduct‚ satisfied the requirements for impeachment.

Second‚ the parties asked the court to direct the speaker to convene a committee of Parliament or any other "appropriate independent mechanism" to investigate the conduct of the president in the implementation of the Nkandla report‚ and whether he‚ by any act or omission‚ had made himself guilty of an offence or inability that warranted the exercise of Parliament’s powers in terms of section 89 of the Constitution.

Section 89 deals with the impeachment of the president and says the National Assembly may remove the president from office only on the grounds of a serious violation of the Constitution or the law‚ serious misconduct or an inability to perform the functions of office.

The National Assembly‚ for this to be possible‚ would have to adopt a resolution with the supporting vote of two-thirds of the MPs.

If a president is removed for a serious violation of the Constitution or serious misconduct‚ he or she may not receive any benefits of that office‚ and may not serve in any public office‚ in terms of section 89(2).

Third‚ the parties asked for declaratory orders that the speaker failed to put in place appropriate mechanisms and processes to hold Zuma to account for violating the Constitution‚ that she had failed in her duty to apply her mind and or scrutinise the violation of the Constitution and that her failures infringed on sections 42(3)‚ 48 and/or 55(2) of the Constitution.

The EFF made it clear that it did not ask the court to determine what the speaker and the National Assembly should have done - but it wanted to comply with sections 42 and 55 of the Constitution‚ silence on the matter was "never enough".

- BusinessLIVE

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