Economic Freedom Fighters and Another v Speaker of the National Assembly and Others

Case Citation and Basic Information.

 Economic Freedom Fighters and Another v Speaker of the National Assembly and Others [2026] ZACC 17 Court: Constitutional Court of South Africa Date of Decision: 8 May 2026 Coram: Maya CJ, Madlanga ADCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J Judgments: Maya CJ (first judgment, with Madlanga ADCJ, Rogers J and Theron J concurring); Kollapen J (second judgment, with Mathopo J, Seegobin AJ and Tshiqi J concurring); Majiedt J (third judgment, with Mhlantla J and Tolmay AJ concurring).

 Introduction.

In this case, the constitutionality of Rule 129I of the Ninth Edition of the Rules of the National Assembly (NA Rules), governing the procedure for removal of the President in terms of Section 89(1) of the Constitution, is being considered. The EFF and the ATM have taken legal action against the rule and subsequent vote at National Assembly, arguing that both did not meet the constitutional requirement of holding the President accountable. This case is part of a number of EFF v Speaker cases decided by the court.

Facts of the Case.

Burglary at President’s Phala Phala Wildlife Game Farm on 9 February 2020 resulted in theft of foreign currency, which caused controversy regarding its source, storage, and handling of. This led to a criminal case and parliamentary proceedings under Section 89(1) of the Constitution.  Mr. Arthur Fraser, the former National Commissioner for Correctional Services, made a public declaration of laying criminal charges against the President and some other people. Mr. Fraser alleged that foreign currency worth between 4 million USD and 8 million USD was unlawfully brought to South Africa by President’s advisor Mr. Bejani Chauke and this currency was not declared to South African Revenue Service (SARS) or South African Reserve Bank (SARB).  The motion accused the President of violating the Constitution and the law and serious misconduct. The charges include the President having violated Sections 96(2)(a), 34(1) of the Prevention and Combating of Corrupt Activities Act and Section 96(2)(b).

The Speaker of the National Assembly constituted the Independent Panel, composed of Retired Chief Justice Sandile Ngcobo, retired Judge Thokozile Masipa, and Ms. Mahlape Sello SC, to carry out a preliminary enquiry. The Independent Panel produced its report on 30 November 2022, identifying prima facie evidence of violations by the President of Section 96(2)(a) and (b) of the Constitution and Section 34(1) of PRECCA. The President of South Africa launched an application in the Constitutional Court to review and set aside the Independent Panel’s Report. The National Assembly deliberated on the Independent Panel’s report and, by a majority of 214 votes to 149, decided not to proceed with an enquiry under Section 89(1).

Legal Issues.

Is the Constitutional Court’s jurisdiction under Section 167(4)(e) of the Constitution exclusive in relation to the constitutional challenge raised against Rule 129I of the NA Rules and the resolution of 13 December 2022 by the National Assembly? Are there any issues of laches and mootness in the case that might render the case inadmissible before the Court on those grounds? Is Rule 129I of the NA Rules inconsistent with the Constitution, especially as regards the requirement under Section 89(1) to provide for a mechanism for presidential accountability? Is the resolution adopted by the National Assembly declining to refer the Report of the Independent Panel to an impeachment committee inconsistent with the Constitution? If either Rule 129I or the NA resolution is inconsistent with the Constitution, what would be the just remedy?

Arguments Presented.

5.1 It was submitted by the EFF and ATM that the application fell within the exclusive jurisdiction of the Constitutional Court as per Section 167(4)(e) of the Constitution, since the Parliament failed to discharge its duties as per Section 89 to provide an effective means to impeach and hold the President accountable. It was argued that Rule 129I was an unconstitutional rule as it would allow the National Assembly to vote against the referral of the case of prima facie case for impeachment to the Impeachment Committee, which would be allowing political interference in the accountability process.

The applicants asked for a declaration that the Rule 129I is unconstitutional and null and void. The Resolution of the National Assembly of 13 December 2022 was irrational and ultra vires and contrary to the provisions of Sections 1(c) and (d), 42(3), 48, 55(2)(a) and (b)(i), 57(1)(b), 92(2), and 96(1), (2)(b) and (2)(c) of the Constitution. Substitutional orders were sought either to adopt the Report of the Panel.

Respondent’s Arguments.

The respondents opposed the application, mainly on the grounds that the application was an unreasonably delayed judicial review which was not within the exclusive jurisdiction of the Constitutional Court. The respondents contended that there was no case for direct access, since a rationality review ought to have been conducted at the High Court. The President, represented by the ANC, argued that the vote made in the National Assembly was rational and could not be reviewed, since all that happened was a decision not to go ahead with the process and that this decision had no lasting legal consequences. The respondents argued that the Court was not in a position to substitute its decision for that of the National Assembly, since this violated the doctrine of separation of powers, especially Section 89 of the Constitution. 

Court’s Reasoning and Analysis. 

In the case at hand, the Court unanimously concluded that it had exclusive jurisdiction to consider the constitutional validity of Rule 129I under Section 167(4)(e) of the Constitution. According to Judge Maya, the lead judge in the first judgment, Section 167(4)(e) applies where Parliament or the President fails to discharge a constitutional obligation. Dissimilarly, in the case of Zuma v President of the Republic of South Africa [2025] ZACC 21, rationality was a general principle and not the source of any specific constitutional obligation under Section 167(4)(e). Second judgement, Kollapen J agreed that there is exclusive jurisdiction for the challenge of the rule, however, his reasons differ from those of Maya CJ in the first judgement. His reasoning is based on the premise that Section 89 provides a permissive power to remove the president and not a constitutional duty to account for the president. 

The Court, in this matter, per Maya CJ, found that the fourteen-month delay in filing the application by the EFF regarding the NA vote was unreasonable and unjustifiable. The Court found that the challenge to Rule 129I was not moot, as constitutional validity issues are objective, and statutes are always valid despite any changes in the membership and term of the National Assembly.

Maya CJ declared Rule 129I unconstitutional and therefore void since it was contrary to the Constitution. She held that although Section 89(1) of the Constitution implies that the National Assembly should formulate specially tailored rules in respect to impeachment, the rules should be formulated in such a way as to ensure that there is an effective mechanism. Rule 129I gave room for the National Assembly to decide on whether the impeachment proceedings should continue after the Panel made its prima facie finding, it would make it easier for the National Assembly to end the impeachment proceedings prematurely. 

Kollapen J disagreed with this ruling and found Rule 129I to be constitutional. According to him, Section 89 of the Constitution gives a permissive power to the National Assembly to remove the President from office. He insisted that the rule in itself is not unconstitutional and any misuse of power under the rule can be challenged on the grounds of conduct and not invalidity of the rule. Majiedt J agreed with the finding of Maya CJ, but reached his conclusion on grounds that were separate from those of Maya CJ. He based his findings on the constitutional duty imposed on the National Assembly to evaluate whether there is a ground for removal, as provided for in Section 89(1).

A majority (Maya CJ and Majiedt J) held that the vote of the National Assembly is inconsistent with the Constitution, and accordingly is invalid and must be set aside. Kollapen J dissented on the basis that the Court did not have exclusive jurisdiction over the vote matter. 

Judgment and Ratio Decidendi

Constitutional Court has exclusive jurisdiction to determine the application for setting aside Rule 129I of the Ninth Edition of the Rules of the National Assembly. Rule 129I is found to be inconsistent with the Constitution, invalid and set aside.

As soon as the panel has reported, the Speaker shall arrange for the report to be considered by the Assembly, with due urgency having regard to the program of the Assembly and shall inform the Assembly of the report. The President shall be informed of the arrangement and decision on the provided with a copy of the report forthwith. If at all the Assembly panel concludes that there is sufficient evidence to proceed with a Section 89(1) inquiry, the matter shall be referred to the Impeachment Committee established by this rule for that purpose. Should the panel decide that there is no sufficient evidence as required under Rule 129G, then the Speaker shall ensure that the report is considered by the Assembly; and should the Assembly nevertheless resolve that a Section 89(1) enquiry be instituted, then the matter shall be referred to the Impeachment Committee formed under this Rule or under the National Assembly Rules. The severance and reading-in of paragraph 3 of the order shall be subject to any amendment to the National Assembly Rules. Until any such amendment is made to the NA Rules, any other NA Rules affected by paragraph 3 of the order shall be read in conjunction with mutatis mutandis.

Ratio Decidendi:

The ratio decidendi is that Rule 129I of the National Assembly Rules is unconstitutional and invalid since it establishes an unconstitutional “gatekeeping” system where the National Assembly is able to stop the impeachment process before it is complete, despite the prima facie evidence of grounds of removal as ascertained by the preliminary panel, thereby breaching the constitutional requirement to put in place an effective and accountable process for the impeachment of the President under section 89(1) of the Constitution.

Obiter Dicta:

Kollapen J’s observations on the differences between majoritarianism and counter-majoritarianism, and the notion that section 89 gives a discretionary authority and not an accountability responsibility, constitutes obiter dicta since it was not part of the majority decision leading to the final judgment.

Critical Analysis

The decision has immense importance for the constitutional law of South Africa specifically in relation to parliamentary oversight and presidential accountability. Through its decision, it has reinforced and extended the jurisprudence laid down in the cases of Economic Freedom Fighters v Speaker, National Assembly [2016] ZACC 11 (EFF I) and Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47 (EFFII) where it was decided that the National Assembly is supposed to develop a proper mechanism for the impeachment of the President. 

Implications and Impact

The judgment carries far-reaching implications for the National Assembly, the Presidency, and the South African political arena as a whole. In the first place, it requires that there be an amendment of the NA Rules in such a way that the case is automatically referred to the Impeachment Committee for a full-scale investigation if a preliminary panel finds sufficient proof of need for such an investigation. This will result in eliminating any political discretion of the National Assembly in question, making the impeachment process more independent and efficient. In the second place, the referral of the Independent Panel’s Report to an Impeachment Committee implies that the accusations of the President will go through a thorough evidence-based investigation.

Critical Evaluation

The reasoning of the majority judges, especially which of Maya CJ and Majiedt J, is very convincing in terms of the constitutional responsibility of the National Assembly in relation to the need to have a proper mechanism for the accountability of the President. The distinction by Majiedt J of voting on the issue of the initiation of inquiry as opposed to whether there is any ground for removal of the President is quite significant. What makes this decision strong is its unwavering adherence to constitutional supremacy, and that no public official, including the President, is above the law.

Conclusion

The judgment by the Constitutional Court in the case Economic Freedom Fighters and Another v Speaker of the National Assembly and Others is a precedent-setting one and will be seen to provide considerable accountability on the part of the president of South Africa. By finding that Rule 129I of the National Assembly Rules was unconstitutional and by invalidating the voting process that resulted in the disallowance of the initiation of an inquiry into the impeachment process, the Constitutional Court has guaranteed that the removal process of a President shall be efficient, transparent and free of political interference at an early stage. The most important lesson from this case is the affirmation that the National Assembly has a constitutional responsibility of providing a robust impeachment process, especially where there is prima facie evidence of the president being guilty of misconduct.

Bibliography

Cases

Economic Freedom Fighters and Another v Speaker of the National Assembly and Others [2026] ZACC 17.

Economic Freedom Fighters v Speaker of the National Assembly and Others [2016] ZACC 11.

Economic Freedom Fighters v Speaker of the National Assembly and Another [2017] ZACC 47.

President of the Republic of South Africa and Others v Public Protector and Others (Zuma v President of the Republic of South Africa) [2025] ZACC 21.

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