In what some might view as an unusual legal long shot, the Helen Suzman Foundation and My Vote Counts have approached the Constitutional Court directly requesting Chief Justice Mogoeng Mogoeng to exercise the court's jurisdiction “as the ultimate custodian of the Constitution” to hear a matter seeking to have President Jacob Zuma removed from office. The lobby groups argue this has become urgent and necessary as South Africa is “in crisis” and the National Assembly has consistently failed to hold the President to account. President Zuma's recent cabinet reshuffle which “immediately resulted in the downgrading of South Africa” by international ratings agencies is cited as one of the key reasons for the application. By MARIANNE THAMM.

In his founding affidavit filed with the court on Wednesday, HSF director, Francis Antonie, argues that as the ConCourt had previously held that the President “is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State Affairs and the personification of this nation’s constitutional project”, the President’s recent conduct, including the reshuffling of the cabinet, “are clear grounds to warrant the removal of the President and the exercise of power in Section 89 (1)”.

This, argue HSF and MVC, has become necessary as the National Assembly has also “taken no steps to exercise the constitutionally-mandated oversight role in respect of the President.”

“Accordingly this court is requested to exercise its jurisdiction as the ultimate custodian of the Constitution and to hear this matter on an urgent basis. The Chief Justice is thus respectfully requested to expedite the hearing of this application and issue directives in respect of the filing of further papers and the hearing of the matter.”

The failure of parliament to fulfill its constitutional duty, in view of the findings of the ConCourt in the Nkandla matter, “is similarly justiciable. This also grounds the exclusive jurisdiction of this Court,” Antonie has argued.

The HSF and MVC contend that the decisions by Zuma to remove Pravin Gordhan and Mcebisi Jonas “are unlawful, irrational” and should be set aside. They also argue that the President violated his Oath of Office and the Executive Ethics Code and section 83 of the Constitution and that he had further committed misconduct falling within the ambit of Section 89 of the Constitution.

The National Assembly was also required “in the exigencies of the situation that now confronts South Africa and which has resulted directly from the President’s conduct, to take steps to initiate/facilitate the possible removal of the President in terms of Section 89 of the Constitution.”

Antonie, as the applicant on behalf of the HSF, states that he has expert knowledge of economics having acquired a Masters of Business Administration from Exeter University, United Kingdom, having previously been a senior economist at Standard Bank, and having been the Director of the Graduate School of Public and Development Management at the University of the Witwatersrand.

As such, he claims that “as the past few weeks have confirmed” the President’s conduct has “brought about such serious economic and social consequences that he has imperilled the achievement of our Constitution’s vision, including the progressive realisation of the rights enshrined in the Bill of Rights.” Respondents to the application are President Jacob Zuma, the Speaker of the National Assembly, Baleka Mbete, former Minister of Finance Pravin Gordhan, Former Deputy Minister of Finance Mcebisi Jonas, Minister of Finance Malusi Gigaba and Deputy Minister of Finance Sfiso Buthelezi.

Antonie states that the President had shown a “lack of concern for the interests of the South African people and the Republic as a whole” and that he has acted in a manner which is irrational and in breach of the rule of law.

“The South African economy has suffered substantially due to the President’s conduct and continues to deteriorate with potentially devastating and irreversible consequences for South Africans, particularly the poor.”

“In terms of this constitutional maelstrom, it must be said plainly that South Africa is in crisis. There is thus a pressing need for this Court to exercise it exclusive jurisdiction in respect of the declarators sought in this application. This is essential to provide stability, preserve and uphold the rule of law, give effect to the separation of powers and the constitutional principles of accountability and openness,” states Antonie.

He added that if the President’s conduct remained unchecked it would send the message that “the Constitution may be violated with impunity”.

“This message cannot be the message that prevails; it does irreparable damage to the public interest, the rights of citizens, the integrity of the President’s office and violates the principles upon which the Constitution was premised.”

There was thus a pressing need for the ConCourt to address the serious constitutional breaches by the President and Parliament and to restore legality and adherence to the Constitution.

“Again, if the President’s unconstitutional decisions are not impugned and the National Assembly is permitted to close its eyes to the present circumstances and shirk its inherent duties, this would render the promise of the Constitution meaningless.”

The circumstances under which the application was filed were “extraordinary” as the President and the Speaker had failed to fulfil their most fundamental constitutional duties and mandate.

“They must be held to account, not only for constitutional reasons, but also to prevent further damage to financial markets and the real economy. The consequences of damage will be slower or negative growth, higher unemployment, higher inflation and fewer resources to support social spending. And these burdens will be borne disproportionately by the poor.”

Section 89 of the Constitution allows the President to be removed from office on one of three grounds; where the president is found guilty of having seriously violated the constitution or the law, or seriously misconducted himself, or if he is unfit to hold office.

Should the action succeed and the President is removed in terms of sections 89 (1) (a) and (b) he would not receive any benefits of that office and may not serve in any public office.

The HSF argues that the President had “regrettably” abused and failed to properly exercise the power invested in the office of the Presidency and had ignored and breached his constitutional obligations, the rule of law and the Constitution and had sought to act with impunity “as a law unto himself.”

“He has enriched himself through the office he holds as a public servant” through the misappropriation of funds for his Nkandla homestead.

“The president compounded such serious misconduct by publicly renouncing reports into the Nkandla matter and its findings, as well as opposing the Public Protector report and litigation in relation to such report”. He also “unlawfully, based upon contradictory and unsustainable grounds, replaced (twice) the Minister of Finance, contrary to all advice and warnings of economic instability and without proper consultation, with enormous harm to the Republic.”

This resulted in the downgrading of South Africa’s credit rating and the credit ratings of South Africa’s banks, the jeopardising of numerous social welfare programmes and fostering division.

When Zuma first replaced Finance Minister Nhlanhla Nene, “it may be said that the President acted simply grossly negligently.”

“When he acted in a substantially similar manner in March 2017, it is safe to say he acted with full knowledge of the harm which would inevitably result and with wanton disregard of factors which were required to be assessed.”

The cabinet replacements, including the reasoning advanced, had lead to “mass protests, threats of violence, racially charged public statements, calls to disobey government and political infighting.”

The President replaced Finance Minister Gordhan “so as to appoint a supine Minster of Finance, increase his access to and control of the National Treasury for purposes other than the furtherance of the Republic’s constitutional project.”

The President had acted contrary to the Constitution and in addition Parliament had to consider whether “it is constitutionally tenable to maintain in office a person who has failed to discharge the constitutional requirements of the highest office of the land, particularly when that person had repeatedly embarked on conduct which harms the best interests of the Republic.”

In the founding affidavit HSF and MVC argue that there are limited means for the public, and the Republic, to hold the President to constitutional standards of conduct “where he himself refuses to do so or even acknowledge his violations of the Constitution”.

It was the ConCourt then that must “declare any conduct inconsistent with the constitution invalid and provide a just an equitable remedy. At the next national elections, the public may elect not to vote for the President’s political party. This is, however, clearly not an immediate remedy.”

And while a vote of no confidence may be tabled and proceeded with, although this was inherently political process, as demonstrated in practice or a section 89 removal/impeachment process may be undertaken.

“Moreover, unlike the fundamental law of various other jurisdictions, our Constitution makes no provision for the suspension from office of the President whilst he or she is subject to an impeachment process. In these circumstances, it is imperative for the court to rule on constitutional breaches to ensure that the bounds set by our founding law are not transgressed, and any transgressions are remedied, and for Parliament to be enabled to exercise its independent power and duly to remove the President to the extent that he has misconducted himself as prescribed in the Constitution.”

With regard to to the National Assembly’s duty to take steps the parties argued that “despite the breaches set above, coupled with findings of this court, the National Assembly has not taken any steps under section 89 of the Constitution.”

The removal power vested in the National Assembly in terms of Section 89 (1) constituted a legislative power which dovetailed with the duty of the National Assembly, outlined in section 55 (2) of the Constitution to ensure that all executive organs of state in the national sphere of government are accountable to it and “to maintain oversight in the exercise of national executive authority”.

The power in section 89 (1) thus arose directly from the principle of separation of powers is inherent in our constitutional democracy, argue HSF and MVC

“It must thus be stressed that the President is not a law unto himself or herself and remains a servant of the Republic. The Constitution did away with ‘prerogative’ or royal powers and ensured that all public powers and functions would be subject to oversight and the rule of law. The President is thus obliged to act lawfully and rationally and has a duty to uphold the Constitution and to act in the best interests of the Republic.”

Section 89 (1) is, says Antonie, perhaps the clearest articulation of the oversight role entrusted to the National Assembly and is of central importance in circumstances where the President objectively appears to have failed in his constitutional duties.

“These circumstances have now arisen indubitably in respect of the sitting President and there are objective prima facie grounds for the exercise of the powers of section 89 (1) of the Constitution.”

The question arose then what was to be done by the National Assembly in the current circumstances.

“If this Court agrees that there are prima facie grounds for the exercise of the powers in section 89 (1) of the Constitution, there must be a constitutional remedy to put in place processes so as to give proper effect to section 89. The National Assembly’s response must comport with the purposes of section 89. It must also be a response which gives effect and meaning to the broader oversight role of the National Assembly, the separation of powers, rule of law and the core values of accountability and openness. Anything less is unconstitutional and a violation of the principles at the heart of democracy.”

The applicants submit that the National Assembly is constitutionally obliged and mandated to institute an investigation into the allegations and charges levelled against the President in terms of Section 89 (1) of the Constitution.

“Although no such process is expressly provided for in the Constitution, it is submitted that our Constitution clearly warrants such an approach. It is noteworthy that section 56 of the Constitution imbues the National Assembly with wide-reaching investigative powers.”

The HSF and MVC have spent months preparing the founding affidavit and believe that requesting the ConCourt to intervene in this matter does not amount to judicial overreach. DM

Photo: President Jacob Zuma sharing a light moment with Chief Justice Mogoeng Mogoeng during Freedom Day Celebrations on April 27 2012.