CONSTITUTIONAL COURT OF SOUTH AFRICA

1 CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 76/17 In the matter between: ECONOMIC FREEDOM FIGHTERS First Applicant UNITED DEMOCRATIC MOVEMENT Second Applicant CONGRESS OF THE PEOPLE Third Applicant DEMOCRATIC ALLIANCE Intervening Party and SPEAKER OF THE NATIONAL ASSEMBLY First Respondent PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent and CORRUPTION WATCH (RF) NPC Amicus Curiae Neutral citation: Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47 Coram: Mogoeng CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ Judgments: Zondo DCJ (dissenting): [1] to [128] Jafta J (majority): [129] to [222] 2 Mogoeng CJ (dissenting): [223] to [278] Froneman J (concurring): [279] to [286] Heard on: 5 September 2017 Decided on: 29 December 2017 Summary.

2 Ad hoc Committee mechanisms and processes public Protector s remedial action section 89 process exclusive jurisdiction rules of the National Assembly removal of a President accountability of a President ORDER In the result the following order is made: 1. This COURT has exclusive jurisdiction to hear the application. 2. The failure by the National Assembly to make rules regulating the removal of a President in terms of section 89(1) of the Constitution constitutes a violation of this section and is invalid.

3 3. The National Assembly must comply with section 237 of the Constitution and make rules referred to in paragraph 2 without delay. 4. The failure by the National Assembly to determine whether the President has breached section 89(1)(a) or (b) of the Constitution is inconsistent with this section and section 42(3) of the Constitution. 5. The National Assembly must comply with section 237 of the Constitution and fulfil the obligation referred to in paragraph 4, without delay. 6. The National Assembly must pay costs of the application, including the costs of two counsel where applicable.

4 3 JUDGMENT ZONDO DCJ (Mogoeng CJ, Madlanga J, Zondi AJ concurring): Introduction [1] In this matter this COURT is, once again, called 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.

5 [2] The first applicant is the Economic Freedom Fighters (EFF). The second applicant is the United Democratic Movement (UDM). The third applicant is the Congress of the People (COPE). All these applicants are registered political parties who are represented in the National Assembly. They are all opposition parties. Closer to the date of hearing the Democratic Alliance (DA) brought an application for leave to be joined as an intervening party in the proceedings. The DA made common cause with the EFF, UDM and COPE and said that it sought the same relief as these Corruption Watch, an organisation that is dedicated to fighting corruption, was admitted as amicus curiae (friend of the COURT ).

6 It made both written and oral submissions in this matter. We are grateful for its assistance. 1 The DA is the largest opposition party in Parliament and its leader is the Leader of the Opposition. See section 57(2)(d) of the Constitution. ZONDO DCJ 4 [3] The applicants complaints are against the National Assembly. They have cited the Speaker of the National Assembly in her representative capacity as a representative of the National Assembly as the first respondent and President JG Zuma as the second respondent.

7 All the orders that the applicants seek are sought against the Speaker in her representative capacity. No order is sought against the President. He is only cited as an interested party. Indeed, the President has not taken part in these proceedings. Before considering the applicants case, it is necessary to set out the background to this application. Background [4] The upgrades effected to the private residence of President Jacob Zuma, about which much is already public knowledge by now, constitute the background to this matter.

8 That background includes the fact that on 19 March 2014 the public Protector released a report on her investigation into the upgrades to the President s private residence. That report ended with the public Protector s remedial action against the President. Part of the remedial action against the President was that the President had to pay a reasonable percentage of the cost of the non-security measures effected in his private residence as determined with the assistance of the National Treasury and reprimand the Ministers responsible for the appalling manner in which the Nkandla project was handled and funds were abused.

9 For a long time after the public Protector had taken remedial action against the President, the President did not implement the public Protector s remedial action. It is not necessary in this judgment to give details of what happened after the public Protector had released her report because that is covered sufficiently in the judgment of this COURT in EFF The applicants case focuses on the period after the delivery of that judgment. The relevant background to this matter falls under that period. 2 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) (EFF 1).

10 ZONDO DCJ 5 [5] On 31 March 2016 this COURT handed down its judgment in EFF 1. Some of its conclusions about the President were that (a) the President neither paid for the non-security features of the upgrades nor reprimanded the relevant Ministers; and (b) in neither paying for the non-security installations nor reprimanding the affected Ministers, the President second-guessed the public Protector s remedial action in a manner that is not sanctioned by the rule of law; and (c) the President failed to uphold, defend and respect the Constitution as the supreme law of the land.