Economic Freedom Fighters and Others v Speakers of the National Assembly and Another(CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571

Introduction

The case of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47 (EFF II) is one in which the Constitutional Court was called upon to consider complaints brought by the applicants about the conduct of the National Assembly. The Assembly failed to hold the President accountable. In Economic Freedom Fighters v Speaker of the National Assembly [2016] ZACC 11 (EFF I), the Public Protector had prescribed remedial action against the President, yet the Assembly did not hold him accountable, despite having the relevant constitutional mechanisms available to it.

Facts of the Case

On 19 March 2014, the Public Protector released a report following an investigation into the upgrades made to the President’s private home. The Public Protector found that the President had breached section 96 of the Constitution by using his position to enrich himself.¹ The upgrades were made to President Jacob Zuma’s home in Nkandla, KwaZulu-Natal. They included non-security measures such as a cattle kraal, a swimming pool, a visitors’ centre and an amphitheatre. In her report, the Public Protector required him to pay a reasonable portion of the cost of those measures. For well over a year, the former President failed to implement the remedial action taken against him.

His failure to implement the remedial action was inconsistent with the Constitution, as it violated several of its provisions. Section 83(b) requires the President to uphold, defend and respect the Constitution.² Section 182(1) empowers the Public Protector to take remedial action.³ Moreover, the President breached section 181(3), which obliges organs of state to assist and protect the Public Protector so as to ensure her effectiveness. By ignoring the remedial action, he failed to protect the effectiveness of the Public Protector’s office.

The President submitted a response to the National Assembly, but he did not pay the costs owed by him. The National Assembly then established two ad hoc committees to determine whether the President was liable for any costs. The first committee was formed to examine the Public Protector’s report alongside other reports, including those of the Special Investigating Unit and the Joint Standing Committee on Intelligence. The committees also considered the report of the Minister of Police.

Legal Issues

• Did the National Assembly fail to use the legislation and processes available to it to hold the President accountable?
• Did the National Assembly’s failure to hold the President accountable, when the necessary legislation was available to it, amount to a failure to fulfil its constitutional obligations?
• Did the Court’s intervention in the matter amount to judicial overreach?

Arguments Presented

The Applicants’ Arguments

The Economic Freedom Fighters, the United Democratic Movement, the Congress of the People and the Democratic Alliance brought the matter to court. They argued that the National Assembly had failed to hold the President responsible for his failure to implement the Public Protector’s remedial action, and that this failure to act constituted a failure to fulfil its constitutional obligations. They further argued that the Assembly had not made use of the legislation and processes put in place to hold the President accountable for his conduct. In particular, section 89(1) of the Constitution provides for the impeachment process.⁴

The applicants also argued that the National Assembly had failed to scrutinise the President’s conduct. For an impeachment process to be valid under section 89(1), they contended, the Assembly must first assess whether the President’s conduct amounts to a serious violation.

Furthermore, the applicants argued that the Assembly’s failure to act breached section 42(3), which requires it to scrutinise the conduct of the executive.⁵ They added that, by failing to hold the President accountable, the Assembly had infringed section 55(2) of the Constitution.⁶

The Respondents’ Arguments

The respondents were the Speaker of the National Assembly and the President, Jacob Zuma, who did not participate in the proceedings. The Speaker argued that the National Assembly had already fulfilled its duty to hold the President accountable through question-and-answer sessions, in which the President was required to answer questions about the Public Protector’s report and the EFF I judgment. The Speaker further argued that a motion of no confidence under section 102 of the Constitution had been put to the vote on multiple occasions.⁷

The Court’s Reasoning and Analysis

Interpretation of Section 89(1)

Section 89(1) deals with the removal of the President. The Court held that the section requires a preliminary inquiry before any vote on removal, so that it can be determined whether the President’s conduct provides grounds for removal. The majority also noted that the Constitution does not define “serious violation” or “serious misconduct”. It is therefore the National Assembly’s duty to determine beforehand what these terms mean, so that their application does not depend on the individual interpretations of members. The Court determined that section 89 does not require a specialised committee in every case.

Interpretation of Section 57

The Court considered how the National Assembly’s power under section 57 of the Constitution to “determine and control its internal arrangements” interacts with its constitutional obligations under section 89.⁸ The majority held that the Assembly’s discretion under section 57 is not absolute and remains subject to specific constitutional requirements. Although the Assembly generally has discretion to determine its own rules and procedures, its failure to establish rules providing for the process contemplated in section 89(1) amounted to a failure to fulfil a mandatory constitutional obligation.

In contrast, Zondo DCJ and Mogoeng CJ, in their dissenting judgments, adopted a broader interpretation of section 57. They argued that the mechanics and procedures of parliamentary oversight fall within the Assembly’s discretion to regulate its internal affairs. In their view, the existing ad hoc committee mechanism under Rule 253 was flexible enough to accommodate proceedings under section 89. They therefore considered it unnecessary for the Court to require the Assembly to create additional or specific impeachment rules.

Interpretation of Sections 42(3) and 55(2)

The Court interpreted the National Assembly’s duty to “scrutinise and oversee executive action” under section 42(3), and its duty to provide “mechanisms for accountability” under section 55(2). The Assembly failed in these duties because it did not properly examine whether the President’s conduct met the requirements of a serious violation.

Interpretation of Section 237

The Court also considered section 237 of the Constitution, which requires constitutional obligations to be performed diligently and without unnecessary delay. The majority understood this provision as imposing a duty on the National Assembly to act promptly once an impeachment complaint has been submitted or a constitutional violation has been identified. The Assembly is therefore expected to give such matters appropriate priority and to avoid procedures or delays that could undermine the accountability process. In the majority’s view, resolving the matter within a reasonable period is important because prolonged uncertainty may leave a “dark cloud” over the President and weaken the effectiveness of the constitutional mechanism for holding the President accountable.

Interpretation of Section 167(4)(e)

The Court examined its exclusive jurisdiction under section 167(4)(e) of the Constitution, which empowers it to determine whether Parliament has failed to fulfil a constitutional obligation.⁹ The majority affirmed that this provision gives the Court the authority to assess Parliament’s compliance with its constitutional duties where necessary. The Court emphasised its role as the ultimate guardian of the Constitution, which means that it must ensure that Parliament and other organs of state exercise their powers within the limits the Constitution establishes. Accordingly, Parliament’s internal autonomy does not prevent judicial intervention where its failure to act amounts to a violation of a constitutional obligation.

Judgment and Ratio Decidendi

The Court’s Decision

• Exclusive jurisdiction: The Court affirmed that it has exclusive jurisdiction to hear the application under section 167(4)(e) of the Constitution.
• Failure to make rules: The Court declared that the National Assembly’s failure to make specific rules regulating the removal of a President in terms of section 89(1) is a violation of the Constitution and is invalid.
• Mandate to create rules: The National Assembly was ordered to comply with section 237 of the Constitution and to establish these rules without delay.
• Failure to scrutinise conduct: The Court found that the National Assembly had failed to determine whether the President’s conduct (regarding the Nkandla upgrades and the EFF I judgment) breached section 89(1)(a) or (b). This was inconsistent with its constitutional oversight duties.
• Mandate to fulfil obligations: The Assembly was directed to fulfil its obligation to scrutinise the President’s conduct without delay.
• Costs: The National Assembly was ordered to pay the costs of the application.

Ratio Decidendi

The majority, led by Jafta J, held that section 89(1) imposes a constitutional obligation on the National Assembly to establish a procedure specifically designed to deal with the possible removal of a President. This procedure must include a preliminary inquiry to determine, on the facts, whether a recognised ground for removal, such as a serious violation of the Constitution, has been established. The majority found that the Assembly’s existing general rules and its reliance on ad hoc committees did not provide a sufficiently clear or structured process for conducting such an inquiry. Consequently, the Assembly had failed to fulfil its constitutional obligation under section 89(1). This finding forms part of the ratio decidendi, because the Court’s conclusion that the Assembly had acted unconstitutionally depended on the absence of an adequate procedure for determining whether grounds for presidential removal existed.

Zondo DCJ, with Mogoeng CJ concurring, would have held that the National Assembly had not failed to fulfil its constitutional obligations. In their view, the Assembly had sufficient mechanisms to hold the President accountable, including parliamentary questions, motions of no confidence and ad hoc committees. They further held that section 57 gives the Assembly discretion to determine its internal arrangements and procedures, and that the Constitution did not require it to adopt a separate, specifically tailored impeachment procedure. The proposed ratio of the dissent was therefore that the existing parliamentary mechanisms were sufficient to fulfil the Assembly’s constitutional responsibilities, and that the Court should not interfere with the Assembly’s internal processes.

Critical Analysis

A critical analysis of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another reveals a significant constitutional conflict between parliamentary autonomy, the separation of powers and executive accountability. The central issue was whether the National Assembly had fulfilled its constitutional obligation under section 89(1) to establish a procedure for determining whether a President should be removed for a serious violation of the Constitution or the law.

The majority, led by Jafta J, held that section 89(1) requires a specific procedure for presidential removal, including a preliminary inquiry to determine whether sufficient grounds exist before a final vote is taken. The majority found that the existing general rules and ad hoc committee mechanisms were inadequate because they did not provide a sufficiently structured process. This approach is persuasive because impeachment is an exceptional constitutional mechanism that requires clear procedural safeguards. Without such a process, the power to remove a President could be exercised inconsistently or primarily for political reasons.

The dissenting judgments of Zondo DCJ and Mogoeng CJ adopted a broader view of Parliament’s discretion under section 57. They argued that the National Assembly already possessed various accountability mechanisms, including parliamentary questions, motions of no confidence and ad hoc committees. In their view, the Constitution did not require a separate impeachment procedure in every circumstance, particularly where the relevant facts were already established. This approach protects Parliament’s institutional autonomy and limits judicial interference with its internal procedures.

The disagreement therefore reflects a broader tension within the separation of powers. While Parliament must retain sufficient freedom to regulate its own affairs, that discretion cannot be exercised in a manner that prevents the effective implementation of a constitutional obligation. The majority’s reliance on section 167(4)(e) reinforces the Court’s role in ensuring that Parliament complies with the Constitution, rather than allowing constitutional duties to remain unenforced.

The judgment also highlights the importance of section 237, which requires constitutional obligations to be performed diligently and without delay. The majority’s approach strengthens the rule of law by ensuring that the constitutional mechanism for presidential accountability is supported by clear and effective procedures. However, the need for prompt action must still be balanced against Parliament’s need for sufficient flexibility when dealing with a matter as serious as presidential removal.

Ultimately, the majority’s reasoning is more convincing because constitutional supremacy limits parliamentary autonomy. Section 57 cannot be interpreted in isolation from section 89. The judgment therefore demonstrates that the separation of powers does not mean that Parliament is free from constitutional scrutiny. Rather, all branches of government remain subject to the Constitution and accountable for fulfilling their constitutional obligations.

Conclusion

The Constitutional Court issued a binding order with the following key components:

• Exclusive jurisdiction: The Court confirmed that it had exclusive authority to decide whether the National Assembly had failed to fulfil its constitutional obligations.
• Invalidity of the omission: The Court declared that the National Assembly’s failure to make specific rules to regulate the removal of a President under section 89(1) of the Constitution was a violation of the Constitution and invalid.
• Mandate to create rules: The Assembly was ordered to comply with section 237 and to create these rules “without delay”.
• Failure to scrutinise conduct: The Court ruled that, following the EFF I judgment, the Assembly had failed to properly determine whether the President had breached section 89(1)(a) or (b) (a serious violation of the Constitution or the law, or serious misconduct).
• Mandate for scrutiny: The Assembly was directed to fulfil its obligation to scrutinise the President’s conduct without delay.
• Costs: The National Assembly was ordered to pay the legal costs of the application.

Core Legal Conclusions of the Majority

The majority judgment, led by Jafta J, arrived at several critical conclusions that shaped this final order:

• Requirement for a preliminary inquiry: The Court interpreted section 89(1) as implicitly requiring a preliminary inquiry to establish the facts of a violation before a final vote on removal is taken.
• Need for specifically tailored rules: The majority found that the general parliamentary rules and the ad hoc committee process were inadequate because they lacked a defined procedure for determining what constitutes a “serious” violation or “serious misconduct”.
• Institutional duty: The Court concluded that the Assembly has a mandatory institutional duty to ensure that the grounds for impeachment are established through a fair and objective process, rather than leaving the question to the “heat of the moment” or to partisan debate.

The Dissenting Perspective

It is important to note that the decision was not unanimous. The dissenting judges, Zondo DCJ and Mogoeng CJ, concluded that:

• The National Assembly had not sat idle. It had used various mechanisms, such as motions of no confidence and question-and-answer sessions, to hold the President accountable.
• The Court’s intervention constituted “judicial overreach” and an impermissible intrusion into the internal arrangements and exclusive domain of Parliament.
• Existing mechanisms, such as ad hoc committees, were flexible and sufficient for the task.

Taken together, the judgment confirms that Parliament’s control over its own procedures is real but bounded. Where the Constitution imposes an obligation, the Assembly must give it practical effect, and the Constitutional Court will intervene if it does not.

Note(S):

¹ The Constitution of the Republic of South Africa, 1996, section 96.

² The Constitution of the Republic of South Africa, 1996, section 83(b).

³ The Constitution of the Republic of South Africa, 1996, section 182(1).

⁴ The Constitution of the Republic of South Africa, 1996, section 89(1).

⁵ The Constitution of the Republic of South Africa, 1996, section 42(3).

⁶ The Constitution of the Republic of South Africa, 1996, section 55(2).

⁷ The Constitution of the Republic of South Africa, 1996, section 102.

⁸ The Constitution of the Republic of South Africa, 1996, section 57.

⁹ The Constitution of the Republic of South Africa, 1996, section 167(4)(e).

Bibliography

• Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016)
• The Constitution of the Republic of South Africa, 1996, sections 42(3), 55(2), 57, 83(b), 89(1), 96, 102, 167(4)(e), 182(1) and 237.