In theory, a President can do extraordinary things and still remain in office in South Africa, duelling parties agreed in the Constitutional Court on Tuesday during eight hours of argument. A conviction for murder, as long as the sentence is suspended, would not automatically disbar a President, Chief Justice Mogoeng Mogoeng suggested.
Similarly, a conviction for corruption without prison time would not necessarily do it, advocate for speaker Baleka Mbete, Hamilton Maenetje, told the court.
And in reality a President has done an extraordinary thing and survived it: President Jacob Zuma seriously breached the provisions of the Constitution around his Nkandla homestead.
“We accept that,” said Maenetje. “As a lawyer, I’m making the submission — as a lawyer and not as a member of the National Assembly.”
Later, under heavy fire from the bench Maenetje conceded that “one can deduce” that Mbete must agree that Zuma seriously violated the Constitution.
But the very fact that Zuma was obviously in serious violation of the Constitution means that the Economic Freedom Fighters (EFF), Congress of the People (Cope), United Democratic Movement (UDM), and Democratic Alliance (DA) should not get an order to force Parliament to examine that violation in preparation for an impeachment hearing, Maenetje contended.
A “a serious violation of the Constitution or the law” is one of three grounds on which a President may be removed from office. Such a removal requires a two-thirds majority vote in the National Assembly, but unlike a motion of no confidence (which requires only a simple majority) impeachment strips the President of benefits and bars him from all public office, forever.
“This case really is about what should happen in the light of the fact there is an indisputable prima facie case for impeachment,” advocate Tembeka Ngcukaitboi told the court on behalf of the EFF. “What we propose is a precursor to the impeachment.”
The EFF argued that Zuma’s proven failure to protect the public purse as state money was wildly spent on his Nkandla compound should have triggered an impeachment investigation. Parliament, and specifically Mbete as speaker of the national assembly, had an obligation to determine, for instance, whether Zuma had lied to Parliament on Nkandla, in a fact-finding exercise that would precede a political vote on his impeachment.
Neither the Constitution nor the rules of Parliament make provision for such a fact-finding exercise, but “at the level of principle to impeach on the basis of misconduct, unlike the motion-of-no-confidence situation, you cannot escape the fact-finding stage,” advocate Dali Mpofu said on behalf of Cope and the UDM, which supported the EFF’s application.
That assertion by the opposition drew close questioning and intense questioning from Mogoeng. Would such fact-finding be required if, say, a President were to shoot dead 12 people in full view of the national assembly? And if a previous attempt to impeach Zuma had succeeded without such fact-finding, would Zuma have been able to challenge it in court?
In a 40 minute exchange with Mogoeng, Ngcukaitboi found himself arguing that such a premature impeachment of Zuma could have been unconstitutional, that Zuma had to be given an opportunity to defend himself, and that Zuma may be able to exculpate himself.
The fact-finding process that the EFF envisages would subject Zuma to cross-examination, in public, by among others representatives of opposition parties wielding powers of subpoena.
While the EFF argued that Mbete had at her disposal the tools to set up such a fact-finding exercise but had just failed to do so, the DA said Parliament lacked the rules and processes to properly hold a President to account. But the blue party too conceded that even in the face of “insurmountable evidence” of a serious breach of the Constitution, MPs could choose to keep a President in office—though it contended they had to make their choice properly informed.
“Assuming even it is a political judgment… it has to be exercised on true facts that emerge at a public trial or hearing,” said advocate Steven Budlender for the DA.
However, the DA largely found itself responding to what it characterised as a complete legal about-turn on behalf of Mbete on Monday.
Mbete had been due to file a reply to the DA’s arguments on Thursday. Instead she travelled to Iran, leaving deputy speaker Lechesa Tsenoli to deal with the papers. A new legal team started that work on Friday, and delivered their paperwork barely 24 hours before Tuesday’s marathon session of arguments.
In the late reply Tsenoli said that the rules around ad hoc committees of Parliament, such as the one that recently investigated the SABC, could be used to find facts on Nkandla, Budlender contended.
“She’s changed her case, she should be commended for having changed it now,” Budlender said of the Tsenoli submission.
The suggestion that an ad hoc committee could serve the purpose was a “complete contrast” to the impression Mbete had originally created, advocate Kameshni Pillay told the court for Corruption Watch, which acted as a friend of the court. It was exactly the kind of last-minute concession that Mbete made when challenged on her handling of Nkandla in February 2016, Mpofu said.
In her original affidavit on the matter, Mbete mentioned an ad hoc committee once, as the last in a list of mechanisms that can be used to hold a President to account. In his affidavit on Monday, Tsenoli referred to such a committee 34 times.
“The removal of a President is not an everyday affair and an ad hoc committee is eminently suitable,” Tsenoli wrote.
But the idea of using an ad-hoc committee amounts to a false promise of action, Budlender argued, because it requires an agreement (by the majority party that voted the President into office) on its rules and procedures — and must then be scheduled, which requires the consent of the chief whip of the majority party.
“Relying on the ad hoc committee system means you can never get out of the starting blocks unless the majority party whip agrees,” said Budlender.
The same problem arises with Mbete’s argument that Zuma has been subjected to many questions in Parliament — a process that would take a hundred years to answer outstanding questions on Nkandla, said Mpofu.
“These things are inherently urgent,” Mpofu said. “Justice delayed is justice denied.”
Judgment was reserved.