The Economic Freedom Fighters (EFF) celebrated its final victory of the year after the Constitutional Court ruled in its favour and found Parliament had not done its duty to hold President Jacob Zuma to account for his breach of the Constitution when he spent public money upgrading his private Nkandla home.

The court ruled that parliament had also breached the Constitution in its conduct‚ by not investigating whether Zuma should be removed.

The court arrived at four judgments‚ but a majority judgment ordered Parliament to start processes under Section 89 of Constitution to investigate whether Zuma should be recalled.

Section 89 of the Constitution allows a president to be removed with a two-thirds vote of no confidence for violating the Constitution‚ or for serious misconduct or breaking the law.

But there are no parliamentary rules on how to implement a motion tabled in parliament under Section 89.

The Democratic Alliance‚ which had been an intervening party in the case‚ had argued that these rules were needed.

The majority judgment penned by Justice Chris Jafta concurred. The court told Parliament it had to make rules “without delay” on how it would regulate the removal of a president under Section 89 of the Constitution.

The EFF‚ the United Democratic Movement (UDM) and the Congress of the People (Cope) had asked the court to find that Parliament and National Assembly speaker Baleka Mbete had not done enough to hold Zuma to account for violating the Constitution by using taxpayers’ money for “upgrades” to his Nkandla home. They wanted a hearing and an investigation into Zuma’s conduct.

The removal of a president under Section 89 requires a factual inquiry into whether the president breached the Constitution‚ broke the law or is unfit to be president. This is why the court ordered Parliament to start a process to determine if the president should be removed.

Chief Justice Mogoeng Mogoeng wrote a minority judgment saying the majority order was a “textbook case of judicial overreach” into parliament.

He found the applicants‚ the EFF‚ UDM and Cope‚ were themselves part of a process that was already taking place to make rules for motions to remove the president under Section 89 of the Constitution. He said the order served no “beneficial or practical purpose” given that rules were already being made.

Deputy Chief Justice Raymond Zondo‚ in his minority judgment‚ found that the motions of no confidence in Zuma had satisfied Parliament’s duty to hold Zuma to account for violating the Constitution. He would have dismissed the EFF’s application.

But the majority judgment means the EEF won with costs‚ which will be paid jointly by Parliament and the presidency. 

* This article has been updated to remove timelines which were reflected in a media summary of the court ruling but which did not appear in the final judgment.