Separation Of Powers In South Africa: Summary Of The Various Judgements

1. Introduction

The separation of powers is one of our important principles in our constitutional system. This means that our governments powers are divided into three different spheres namely, the executive, legislature and judiciary. The concerning matter is whether the judicial system can interfere with the work of the executive branch. The following text discusses these three different spheres along with the issues of the case of the EFF v Speaker of NA 2017 as well as the different concurring judgements, and if there is an agreement towards the minority or majority judgement.

2. Separation of powers

Our constitutional system consists of the separation of powers, this system divides our government into three different branches, or as a person can also call it the different organs of state. They are known as the legislative, executive and judicial branches. The Legislative branch comprises of the National Assembly and the National Council of Provinces, each house gets their own distinct functions through the Constitution. The executive branch comprises the President and his cabinet, they then together exercise executive authority over the county. The judicial branch consists of all courts -. The branches are divided equally, to ensure that one branch cannot abuse the power of government. Judicial overreach, therefore, comes into play when a court goes against the doctrine of the Separation of powers. In this case the different judgements 1 will discuss if the Court did or did not perform judicial overreach.

3. The issues of the case:

There are three applicants, the first is the Economic Freedom Fighters (EFF), the second is the United Democratic Movement (UDM) and the third is the Congress of the people (COPE). All three of these applicants are registered political parties who are all 2 represented by the National Assembly and are all oppositions against each other. All three 3 these applicants lodged their complaints against the National Assembly. There are also 4

two respondents first the speaker of the National Assembly and the second President JG Zuma. All the orders that the applicants seek has been issued against the speaker of the 5 National Assembly and non however against the President, the President has only been seen as an interested party to the case. When considering the background to this judgement one needs to look at what constitutes it, and in this case it includes the fact that happened on the date of 19 March 2014 when the Public Prosecutor released a report on after concluding her investigation and found that there were upgrades done to the President’s private residence. This investigation ended with the Public Protector taking 6 action against the President, in order for him to pay back the money that were abused through using the funds that was needed for the Nkandla project, for his own benefit towards his private resident. The president did however not take the actions that he was 7 supposed to.

4. The summary of the various judgements

4.1 Zondo DCJ’s judgement

The second judgement debates that the current permanent mechanism, laid out in section 89 of the constitution, cannot satisfy holding the President accountable for not implementing the Public Protector’s remedial actions. According to the case of Plascon-8 Evans, it clearly showed that the Respondents version is the version that should succeed. 9 The DA’s version is in disagreement with the other versions of the applicants and their evidence, and yet the second judgement still chooses the version of the DA, but in the choosing of the DA’s version it fails to explain why. When considering the procedures of 10 section 89, A sub-committee was created by the Rules Committee of the National Assembly, so that they could consider the issue whether a specific mechanism was put in place. He also stated that, that specific sub-committee represented all the political 11 parties. The parties asked for an opportunity to concur with their parties on the 12 proposals and failed to return, which led to the current preceding. 13 Zondo then stated that the most appropriate thing for the court to do in this situation is to inform the applicant to take their proposal about the section 89 mechanisms to the sub-committee so that the sub-committee can review their proposal and then state if it is constitutionally valid or not. An ad hoc Committee is created so that it can perform a 14 specific task for and on behalf of the national Assembly, when this task is performed, it must then take its findings and recommendations and report back to the National Assembly, the National Assembly must then approve or disapprove of the findings. The 15 national Assembly has this obligation according to sections 42(3) and 55(2) of the Constitution. 16

The only way to remove the President according to section 89, one or more of the grounds should be true, the three grounds are; the President should have committed a serious violation of our Constitutional law; serious misconduct should have been committed; or the President should not be able to perform the functions of office anymore. The Parliament should have a mechanism in place to deal with the impeachment process.

4.2 Jafta J’s judgement

Jafta J read the first judgement and in the beginning he agrees with the fact that the matter falls within the jurisdiction of this specific court. The reason why he agrees is 17 because the claims raised by the parties states that the National Assembly failed to complete its obligations under certain provisions made by the Constitution. The main 18 issues that the first judgement brings forward are, firstly whether the National Assembly did indeed fail to put mechanisms in place towards the Presidents accountability according to section 89, and secondly whether the Assembly had failed to hold the President 19 accountable. Jafta J states that although he agrees with these statements, he does not 20 agree with the conclusion of the first judgement towards both issues, he feels that the application should have succeeded on both issues. When it comes to section 89, it states 21 that the President may only be removed from office by the National Assembly. The 22 president has violated the constitution by failing to uphold, defend and respect it in two respects. 23

First, by disregarding the remedial action taken against him by the public protector. 24 Secondly, by failing to assist and protect the office of the public protector to ensure its independence, impartiality, dignity and effectiveness by complying with her remedial action. When it comes to the motion of impeachment, the court noted that in the absence of the initial enquiry to state whether one of the grounds set out by section 89(1) of the Constitution were present, removing the President would have been unconstitutional. 26

The Constitutional Court then stated that according to the procedures of section 89(1) of the Constitution that the National Assembly has indeed failed to implement the correct rules. The court also stated that due to the fact that the National Assembly did not 27 succeed in their attempt to prove whether the President did indeed infringe upon section 89(1) of the Constitution. The Court then made an order stating that the rules that are 28 created should be created within 120 days from the date it was ordered, and that the process of section 89(1) should be implemented within 180 days of the ordered date. 29

4.3 Mogoeng CJ’s judgement

In Mogoeng CJ’s statement he agrees with the first judgement, and then states that the second judgement is a ‘textbook case of judicial overreach’. The second judgement is 30 therefore in conflict with the separation of powers. In the high court the following 31 documents helped the court to come to a conclusion: the opposed motion proceedings, the parties file affidavits and annex supporting documents. The declaratory order is not 32 there to give the President a chance to be heard. The declaratory order however is there to ensure that there is a successful mechanism to hold the President responsible for his or her duties. 34

The mechanism that then needs to be implemented to ensure success is: one that makes sure that the debate and voting always follows from a question; that the impeachment is managed by a committee with the correct size and parties; rules that are there to ensure that the majority would not use their votes to protect the President; and the committee’s main purpose should always be to first make sure that the impeachment is constitutional before judging the positive and negatives of it. The President was therefore held 35 accountable for the money that he took and used for his private residence that was intended to go to the Nkandla project. The problem that then occurred is that the 36 National Assembly has been struggling to remove the President from office, which explains why the Assembly is working on other ways to remove the President. 37 All there there’s judgements include section 89 of the Constitution therefore section 89 clearly states that the “National Assembly…may remove a President from office”. They 38 use the word “may” to show that it is unrestricted. The next requirement that is used 39 according to section 89 is that a solution must be found by the National Assembly, and should be agreed with by at least a two-thirds majority, of the National Assemblies members.

5. Agree or disagree with CJ Mogoeng’s judgement

After looking at all three judgements of Zondo, Jafta and Mogoeng, it is clear that the judgement of Zondo which is the minority judgement is the judgement that is more in line with what is seen as correct. This is also the judgement with which Mogoeng in his concurrence agrees with. These two judgements agree with the fact that the Constitutional court cannot demand the National Assembly to hold the President accountable for his misconduct. The court’s duty does not include giving orders to the 41 National Assembly, seeing as the executive branch has their own discretion to make decisions. Although the branches may overlap, they cannot interfere with another branch’s duties. The court showed their respect towards the separation of powers, and so did the 42 judgement of Zondo and Mogoeng, and for that reason the court will not tell the National Assembly how to go about for holding the President accountable for his actions. The 43 court does not want to interfere in the processes of the other organs of state, unless it is authorised to do so by the Constitution. For this reason the Constitutional Court did not prescribe the parliament what methods they must use to hold the President accountable.

6. Conclusion

Separation of powers is clearly one of the main sources of this case, and although the different branches can overlap each other at certain times, the Constitution Court in this case respected the other branch of Authority by not interfering with decisions that should be made by the executive branch, and did not order them into using a certain method, and therefore Zondo and Mogoeng was in agreement that there is already an adequate mechanism in place to remove the president from his position and does not require the court to be involved in that decision, the conclusion made by the court in the first judgement was therefore correct.

Bibliography

Case law

1. Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC)
2. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623; [1984] 2 All SA 366 (A) (Plascon-Evans) at 634G-I

Legislation

1. The Constitution of the Republic of South Africa, 1996

Internet sources

1. De Vos P 2016 https://www.dailymaverick.co.za/opinionista/2016-03-31-concourts-nkandla-judgment-what-the-law-says/ accessed 30 March 2019
2. Ramsden C 2017 http://hsf.org.za/publications/hsf-briefs/judicial-overreach accessed 29 March 2019