Saturday, December 30, 2017

South African Parliament Agrees With Dissenting Opinion Claiming Judicial Overreach But Will Comply on Constitutional Court Ruling
29 DECEMBER 2017
- 13:44
South Africa Business Day

Parliament gave the undertaking on Friday that it would comply fully with the Constitutional Court judgment regarding its duty to hold the president accountable, and would ensure the finalisation of the rules of the National Assembly relating to the removal of the president as required by the court.

The court ordered Parliament to formulate rules regulating the removal and impeachment of the president in terms of Section 89 of the Constitution and gave the National Assembly 120 days from the date of the order to do so.

The court found that Parliament’s failure to determine whether President Jacob Zuma breached the Constitution in the way he dealt with the public protector’s Nkandla report, violated its constitutional duty to scrutinise and oversee the actions of the executive.

The court also ordered the National Assembly to initiate the process under section 89 within 180 days from the order.

In its response Parliament noted that the court had not found that National Assembly speaker Baleka Mbete had personally failed to hold Zuma accountable for violating the Constitution by failing to implement the 2014 report of former public protector Thuli Madonsela.

Neither had the court ordered Mbete to establish an impeachment committee of the type described by the applicants.

"In this regard, the court has held the National Assembly collectively responsible for not meaningfully implementing Section 89 of the constitution," Parliament said in a statement.

"The court has thus ordered that the rules of the Assembly be amended without delay to comply with section 237 of the Constitution, which instructs that all constitutional obligations be performed diligently and without delay. The National Assembly rules committee had already initiated a process, as part of its overhaul of rules, to outline a procedure to be followed in implementing section 89 of the Constitution.

"We note and agree with the strong reservation and caution underscored by both the chief justice and the deputy chief justice in the minority judgment regarding encroachment of the judiciary into the internal functioning of the national legislature.

"Parliament, however, respects the majority judgment and will comply fully with it."

Motion must be tabled soon as ‘reasonably’ possible’

Responding to the judgment on Friday, right-wing opposition DA leader Mmusi Maimane said Parliament’s rules governing impeachment must not “fall victim to another farcical ANC process”.

The motion to impeach President Jacob Zuma must be re-tabled in the National Assembly as soon as is “reasonably” possible and debated in a manner that is consistent with the rules devised by Parliament, Maimane said.

“It is now the task of Parliament to ensure the rules governing impeachment do not fall victim to another farcical ANC process in which majoritarian tactics are used to bully the rules committee into devising rules designed to absolve Jacob Zuma,” Maimane said.

“The rules devised by the rules committee must be constitutionally compliant and the process must be imbued with constitutionality. We request that the speaker [of the National Assembly, Baleka Mbet]) comply with the order of the highest court in SA and do the honourable thing — accede to our requests and set Parliament back on course to fulfil its constitutional mandate.”

Maimane said the rules committee must be ordered to meet as a matter of urgency to look at the rules and procedures governing impeachment in compliance with the judgment and the Constitution. He added that Parliament also needed to apply itself earnestly to the question of whether Mbete was still fit to hold office as speaker in light of the damning judgments against her.

“Parliament’s evolution into another captured arm of Jacob Zuma’s corrupt administration has been championed by the speaker of the National Assembly, Baleka Mbete. She has consistently been found wanting in several court judgments for failing to fulfil her constitutional duties in order to protect Zuma and the corrupt ANC — this judgment has again made it clear that Baleka Mbete is unfit to serve as speaker of the National Assembly,” Maimane said.

He attributed the failures of Parliament to perform its duties — as identified by the Constitutional Court — to its having been captured by the ANC and turned into “a lapdog of the executive for the sole purpose of consistently protecting Zuma and his corrupt acolytes at all costs.”

Another blow to Zuma

The Organisation Undoing Tax Abuse (Outa) welcomed the Constitutional Court judgement, and said it hoped that it would be implemented very soon.

Outa said the judgement was yet another blow to the president, who has had several adverse court findings against him this month.

Outa noted that the courts once again had to be called upon to force elected MPs to do their duty.

Outa chief operating officer Ben Theron said it appeared that as a result of the judgment Parliament would have to launch an investigation to establish the facts before bringing the matter before the House for debate and decision.

Saftu wants swift action

The upstart South African Federation of Trade Unions (Saftu), a spin off from the broader Congress of South African Trade Unions (COSATU), wants the ANC to remove Jacob Zuma as president — and see him face the music for all his other corruption charges.

The ruling party, according to Saftu, should also apply pressure for the appointment of a new national director of public prosecutions who will be able to open a case against Zuma, not only for the misuse of state resources on his Nkandla residence, but for all the other charges of corruption he is facing.

Saftu general secretary Zwelinzima Vavi, who was expelled from COSATU an ally of the ANC several years ago for insubordination and sexual misconduct, said in a statement on Friday that his federation would join other civil society groups and opposition political parties at the gates of Parliament in February when Zuma delivers his state of the nation address, to demand that he be dismissed and brought before the courts.

Welcoming the Constitutional Court judgment against Zuma on Friday, Saftu also demanded that Parliament act immediately to comply with it. The Court found that the National Assembly did not hold the President to account in relation to the Nkandla matter as required by the Constitution and failed to perform its duty in this regard. It ordered the National Assembly to make rules regulating the removal of the President in terms of Section 89 of the Constitution.

“Saftu, however, warns that Zuma must not be singled out as the only culprit in these matters. All the other public officials, state-owned enterprise executives and their accomplices in the private sector who have been implicated in the Gupta e-mails, Jacques Pauw’s book and elsewhere, must face the might of the law,” Vavi said.

“The promised independent inquiry into the former public protector’s State of Capture report must proceed without delay and be given the mandate, resources and terms of reference to investigate, not only that report, but all the other allegations of corruption, fraud, money-laundering and other crimes, which are continually being exposed.”

The Federation of Unions of South Africa (Fedusa) also welcomed the majority ruling of the Constitutional Court disagreeing with the minority judgement, which asserted that the majority judgement constituted judicial overreach and a "constitutionally impermissable intrusion by the judiciary into the exclusive domain of Parliament”.

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