This essay serves as the aim to argue in respect to the judgment passed by The Chief Justice Mogoeng CJ in which he supports the minority decision of the Constitutional Court held in the case of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another. Two judgements were made, the first judgement was made by the Deputy Chief Justice (Zondo) and the second judgement was made by the majority judgement. Mogoeng CJ agrees with the first judgement made by Zondo DCJ and disagrees with the second judgement, in his separate judgment as he describes the second judgement as a Textbook case of judicial overreach’ which I disagree with based on the bello listed facts.
Judicial overreach – is when a court acts beyond its area of jurisdiction and acts at the areas of the executive .To start with, the facts of the case in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another is called again; upon to consider and pronounce upon complaints by some of the political parties represented in the National Assembly that the National Assembly has failed to fulfil some of its constitutional obligations .
This case is about Parliamentary mechanisms for holding the President of the Republic accountable and the constitutional obligation of the National Assembly to hold him to account. It is not about holding any President of the Republic accountable as such but about the National Assembly holding the current President of the Republic, President Jacob Zuma, accountable for his failure to implement the Public Protector’s remedial action contained in the Public Protector’s report dated 19 March 2014.
The question posed during the above mentioned case was, whether the National Assembly failed to hold the president accountable for his failure to implement the remedial actions taken by the public protector and whether the National Assembly failed to put in place methods or ways that can be used to hold the president accountable. The deputy chief justice held that the National Assembly did not fail to provide methods or ways that can be used to hold the president liable for his failure to implement the remedial actions taken against him by the public protector, and this is because the National Assembly provided for motions of no confidence together with the establishment of the ad hoc committee to be used for investigation if section 89 is impeached.And this made the Applicants to accept the fact that the National Assembly had put in place methods that can be used for the process of section 89, but the Democratic Alliance (DA) continued to criticize the ad hoc committee. Hence the deputy chief justice commented to this criticism by declaring it unjustifiable, and by also pointing out the fact that the National Assembly established a sub-committee to make recommendations on whether there should have been a special method used for the process of section 89. After the establishment of the sub-committee, political parties were given the opportunity to make some recommendations but they failed to return to the sub-committee to provide their recommendations. After considering the question posed during this case, the deputy chief justice further pointed out that the National Assembly did hold the president liable by allowing a motion for the removal of the president, by allowing a motion of no confidence and by also allowing a question and answer session. According to the deputy chief justice the motion of no confidence was in order and satisfied the requirements of section 89, the grounds provided by section 89 that are required for the removal of the president are three. First ground states that the president must have committed a serious violation of the constitution, second ground states that the president must have committed a serious misconduct and thirdly that the president was unable to perform the functions of the officeThe second judgement was the majority judgement by Jafta and the court provided serious consequences of impeachment of the process of section 89.The request for the removal of the president from the office will only be regarded as constitutional if the grounds provided by section 89(1) are satisfied, the argument of the applicants that the National Assembly’s rules for establishing an ad hoc committee were suitable for the process of section 89, but the court dismissed this argument and also found that there were no rules governing the process of section 89, although the National assembly was obliged to put in place rules that would govern the process of section 89 of the constitution , by the Constitution.According to the Court, the applicants raised an issue which does not acquire that section 89 of the South African Constitution should be applied . The applicants raised a motion of no confidence provided by the National Assembly in terms of section 102(2) of the constitution was not measures taken in terms of section 89(1)and this is because the court found that the process of section 89 has its own requirements rule that the National Assembly was given authority to create . The court then held that the National Assembly failed to provide methods and rules for regulating the process of section 89(1) of the constitution and it also held that the failure by the National assembly to determine whether the president had impeached section 89(1) of the constitution was a violation of their constitutional obligation, and this is explained by section 42(3) of the constitution . As it reads as follows;(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action . This states that the doctrine of separation of powers may not have been defined in the RSA Constitution of 1996 but form part of our Constitutional Design. In the case of GLENISTER V PRESIDENT OF REPUBLIC OF SOUTH AFRICA, Langa CJ stated that, the doctrine of separation of powers. The highest court in the land further directed the National Assembly to comply with section 237 of the Constitution, which states that;Section (237) – All constitutional obligations must be performed diligently and without delay.This oblige that they should make rules regulating the removal of a president in terms of section 89 “without delay” .Hence the court directed the National Assembly to establish a process within 120 days and it also the National Assembly to establish a process under section 89(1) in terms of the newly developed rules, within 180 days from the date of this order within 180 days .Jafta J further points out that this matter falls under the Constitutional court’s jurisdiction and this is because the claims that were made and raised by the applicants was based on the National Assembly failing to fulfil its constitutional obligations. He supports his above mentioned statement by referring to section 167(4) of the constitution, which provides that;states that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; and may decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or Premier or Acts referred to it by 30% of the members of a legislature. That Court also has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution; and to decide that Parliament or the President has failed to fulfil a constitutional obligation .This shows that the separation of powers is important because it provide a system of Checks and balances by ensuring that the different organs of the state control each other and have certain and specific relationship with one. Section 42(3) of the constitution provides that the National Assembly is chosen to represent the people and to ensure the government by the people under the constitution, and this is done by choosing the president, providing a national forum for the public consideration of issues and finally by passing legislation, scrutinizing and overseeing executive actions.However, Justice Mogoeng, a respected jurist, interfered with Justice Jafta’s delivery of the majority judgment. The chief justice provided a judgment which caused a lot of angry public discussions and disagreements on the abuse of power as the high jurist of the state. The interruption is, to my knowledge, unprecedented. Because it is not so much about the dissenting minority judgement – which is still OK. It is about the way this was done, and most importantly ” the interference of the jurisdiction. Chief Justice Mogoeng Mogoeng posed questions to EFF advocate Tembeka Ngcukaitobi about whether the party was asking the Constitutional Court to overstep its powers . In his concurring judgment, the Chief Justice characterises the majority judgment as a textbook case of judicial overreach – a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament. Judicial overreach occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate . It means the court has violated the doctrine of separation of powers by taking on the functions such as law enforcement, policy making, and law making. Been stated above simply merge with the occurrence of the judgment passed by the chief justice. In what sense? The main purpose of Separation of Powers it to avoid arbitrary use of power by the government officials, to limit their powers so that each branch can deal with its specific powers more importantly to act within its jurisdiction boundaries . I further agree with the assertion regarding the statement that the particular judgment made by the Chief justice was a total judicial overreach. Now it is clear as I’ve stated above that the second judgment was the abuse of power in which the force of minority judgment was enforced without6 a proper procedure so to say. I tend to agree further with the EFF as they state that Mogoeng’s actions may unwittingly create doubt in the minds of the public about the majority judgment of the court. To the public reference it becomes a different perception as it shows the abuse use of power by the highest law officials. Because in some sense it looks like the attitude was as that The Chief justice is holding office of CJ, so his view as the CJ should be taken into account. It proposes an idea that all majority judgments are not applicable on his matters and so as the separation of powers. It is how the majority of the judges view a matter and decide on any judgement that seals the outcome. In the full view of Chief justice’s actions, the conduct was unethical. There goes the last institution that held the utmost respect in our country, I submit.