30/03/2017 19:27 SAST | Updated 30/03/2017 19:49 SAST

EFF Heads To ConCourt To Get Zuma Impeached

But the party's court application is cleverly worded; second prize could be a declaratory order against the president.

Mike Hutchings / Reuters
South Africa's Parliament in Cape Town during a motion to impeach President Jacob Zuma after the Constitutional Court ruled that he breached the Constitution.

On Thursday afternoon, the EFF, UDM and Cope filed papers at the Constitutional Court, in what they promised would be proceedings seeking to impeach Zuma. When the EFF put their court papers on their website on Thursday, they called them "EFF Concourt papers on Zuma impeachment".

But a close look at the papers reveals a crafty legal strategy which might not lead to impeachment at all, but that's okay, because they have asked the court to make certain declarations about the Speaker of Parliament and Zuma's conduct as part of the relief sought.

In other words, the applicants would be happy to walk away with second prize, which would be harsh words from the court about the Speaker and Zuma, which could then be used in future impeachment proceedings.

It's the legal equivalent of asking the court to tell us how it really feels about Zuma and Parliament.

According to the Constitution, the president can only be removed if two thirds of the National Assembly vote for his removal. He can only be removed on three grounds, as noted by Constitutional law expert Pierre De Vos:

Later in their papers, the applicants acknowledge that the court cannot really tell Parliament to impeach Zuma. But they'd be happy if it outright declared that the Speaker, Baleka Mbete, and Zuma acted unconstitutionally, which they say, Parliament is allowed to do, and should do.

In arguing why the Constitutional Court has jurisdiction, the EFF sets out the "crux" of the matter: that Parliament has failed its "unique Constitutional obligations to hold the President accountable".

The application leans heavily on the Nkandla judgment, where the Constitutional Court found that Zuma had "violated his oath of office". As the applicants note, Zuma was ordered to #PayBackTheMoney to the tune of R7.8 million.

But the National Assembly failed to take any action in response to the Constitutional Court's judgment, the applicants say, and therefore it was the Speaker's duty to hold the President accountable.

"The constitutional violations by the President require consideration and examination by the National Assembly. This application seeks to compel the National Assembly to carry out its Constitutional functions to scrutinise and enquire into the conduct of the President in two respects:

First, it seeks a declaratory order that the inaction of the National Assembly, in the face of such egregious violations of the Constitution by the President is unconstitutional."

Secondly, the EFF, UDM and Cope want an order compelling the Speaker to take "all the necessary and appropriate steps to determine the seriousness of the violations by the President". This, the applicants say, is a "prelude" to reporting to the National Assembly and "holding the President accountable".

In other words, the Speaker must launch an inquiry into the President's conduct, to report back to the National Assembly and, presumably, the results of which can be used in future impeachment proceedings.

The EFF takes equal aim at the President and the Speaker. The latter should have done something about the Nkandla Constitutional Court judgment, the applicants say.

Here, the EFF, UDM and Cope have foreseen the possibility that they might run into trouble from the court for asking it to overstep the separation of powers doctrine. The court will no doubt be loath to dictate to Parliament how it should operate.

The applicants clearly hope to overcome this by stating right from the start that the court cannot prescribe "exactly what mechanisms ought to be employed to ensure the requisite levels of accountability." But the applicants say the court can declare the lack of accountability to be unconstitutional.

That means the applicants would be happy with a declaratory order; for the highest court in the land to unequivocally say that Parliament isn't doing its job.