Chief Justice Mogoeng Mogoeng File picture: Siphiwe Sibeko/Reuters

Johannesburg - The Constitutional Court on Tuesday, reserved judgment on whether Parliament should institute impeachment proceedings against President Jacob Zuma. 

Advocate Dali Mpofu, for the United Democratic Movement (UDM) and the Congress of the People (Cope), in his closing argument said the Speaker of the National Assembly has a particular Constitutional duty to ensure accountability, not as member of Parliament but as Speaker, adding that an impartial Speaker would look at all the mechanisms.

The Economic Freedom Fighters (EFF) are seeking a declaratory order to direct Parliament to consider Zuma’s conduct and whether he is impeachable following the court’s ruling that he had broken his oath of office and the the country’s Constitution. The application was brought in terms of section 89 of the Constitution. 

Advocate Tembeka Ngcukaitobi, for the EFF, said the party had written to Speaker Baleka Mbete three times and she refused the EFF's request in all those times.

Earlier, Advocate Ngoako Maenetje, for Mbete, not only conceded that Zuma's violation of the Constitution was a "serious" matter, but agreed that the Speaker can initiate impeachment processes against Zuma. He said Parliament had taken necessary steps to hold Zuma accountable.

"As a lawyer for National Assembly, we accept this is serious violation of the Constitution," Menetje said.

"The Speaker does not set up ad hoc committees. It is responsibility of National Assembly. She doesn't have powers to. Because [the] Speaker plays a referee role, it would be inconsistent for her to initiate the removal of the president."

However, Chief Justice Mogoeng Mogoeng corrected him saying: "It can't be that [the] Speaker cannot initiate impeachment process". To which Maenetje conceded.

Maenetje was representing Mbete in a matter brought to court by the EFF seeking a declaratory order to direct Parliament to consider Zuma’s conduct and whether he is impeachable following the court’s ruling that he had broken his oath of office and the the country’s Constitution.

In March last year, the Constitutional Court delivered a damning ruling in which it stated that Zuma had failed to “uphold, defend and respect the Constitution” when he did not adhere to the remedial actions called for by former Public Protector Thuli Madonsela after more than R200 million of public money was spent in upgrading his Nkandla homestead.

On Tuesday, Maenetje argued that various steps were taken to hold Zuma to account for his violation of the Constitution after the Nkandla judgment, adding that the Constitution does not say that if the president is not impeached that no steps had been taken to hold him accountable.

Earlier in the day, Ngcukaitobi argued that Mbete had failed in her duty by rejecting a fact-finding inquiry to be chaired by a judge called on by the EFF or a multi-party committee to probe Zuma’s conduct.

Ngcukaitobi also argued that the scrutiny into Zuma’s conduct offered by motions of no confidence did not fulfill the required scrutiny as the majority party “simply rammed through a proposal”, and thus it did not apply in this matter, or in the relief sought by the EFF. He said they were asking the court to direct Parliament to determine if there are grounds to impeach Zuma.

He said the EFF wanted a fact-finding inquiry which would allow Zuma to present his side and be cross-examined.

However, Ngcukaitobi struggled to convince Mogoeng why the matter had to be heard at the Constitutional Court in the first place since the court had pronounced on Zuma’s conduct, also asking why opposition parties were not approaching the Speaker to request the establishment of an ad hoc committee in Parliament.  

Mogoeng emphasised that the court needed clarity on why it should intervene on Parliament’s alleged inability to hold Zuma to account while not overstepping separation of powers.

“Every arm of the State has a role to play. I want to make sure court does not take over Parliament’s responsibility,” Mogoeng said.

Mpofu said there was hierarchy of accountability measures in Parliament, starting at question and answer sessions and ending with impeachment.

Earlier, Mpofu said Zuma’s violation of the Constitution and his breach of the oath of office was not bona fide. Zuma should be hauled before a “fact-finding inquiry” which would determine if his violation of the Constitution was an honest mistake or a deliberate deed, he said. 

“Did the president violate the Constitution knowingly or did he get wrong advice? If the president’s violation was bona fide, then I would agree that it is not so serious. But if it was knowingly, then it is serious. Our prayer is the court should find that the National Assembly has failed to take all mechanisms to hold the president accountable,” Mpofu said. 

The opposition parties want Zuma hauled before a “fact-finding inquiry” which would determine if his violation of the Constitution was an honest mistake or a deliberate deed.