Something Happened on Our Way to ‘A Funny Democracy’: A Critical Analysis of 2018 (2) SA 571 (CC) Executive Accountability in South Africa and Lesotho

• Author: M. Mhango,M. Hlaele
• DOI: 10.10520/ejc-lesotho_v27_n1_a2
• Published date: 01 January 2022
• Date: 01 January 2022
• Pages: 23-48

SOMETHING HAPPENED ON OUR WAY TO ‘A FUNNY

DEMOCRACY’: A CRITICAL ANALYSIS OF ECONOMIC

FREEDOM FIGHTERS AND OTHERS V SPEAKER OF THE

NATIONAL ASSEMBLY AND ANOTHER 2018 (2) SA 571 (CC)

EXECUTIVE ACCOUNTABILITY IN SOUTH AFRICA AND

LESOTHO

Mhango M.* & Hlaele M.**

Abstract

The note examines the majority and minority judgments

in Economic Freedom Fighters v Speaker of the National

Assembly. It critically examines the majority judgment in

for demonstrating lack of commitment to the text of the

Constitution. The note uses its examination of the latter

case to consider possible relevance and application of the

case in Lesotho.

INTRODUCTION

Many South Africans, especially constitutional commentators, were

taken by surprise when the Constitutional Court (herein also

referred to as the Court or Apex Court) announced that it will

deliver a judgment in Economic Freedom Fighters v Speaker of the

National Assembly

1

(herein after as Impeachment Case) on 29 December

2017. This was a surprise because most people in South Africa are

on holidays with their families during this period of the year. What

is more, during the televised delivery of the main judgment by

Justice Jafta, there was a brief moment of interruption caused by

* Professor of Law, National University of Lesotho.

** Lecturer, National University of Lesotho

1

Economic Freedom Fighters and Others v Speaker of the National Assembly

and Another 2018 (3) BCLR 259 (CC) (S. Afr.).

24 LLJ Vol. 27 NO. 1

Chief Justice Mogoeng, which turned out to be the Chief Justice

instructing his counterpart to read out parts of the dissenting

opinion penned by the Chief Justice.

2

This interruption painted a

clear picture that there were tensions at the Apex Court over this

case. To fully understand these tensions, it is important for us to

briefly sketch out the political context in which the Impeachment Case

was heard and decided.

The Impeachment Case was a sequel to the Economic Freedom Fighters

v Speaker of the National Assembly

3

(Nkandla case) and United

Democratic Movement v Speaker of the National Assembly

4

(Secret Ballot

case). In these cases, the Constitutional Court adopted and applied

the political accountability doctrine, which essentially provides that

when the Constitution of the Republic of South Africa, 1996 (herein

as the Constitution) confers power to a politically accountable

branch of state without imposing principles or constraints on how

that power should be exercised, the relevant branch has discretion

to exercise that power; and ―it falls outside the parameters of

judicial authority to prescribe‖ to the relevant branch on how to

implement that discretion.

5

The constitutional theory behind this

2

See, https://www.youtube.com/watch?v=Fntd2R9rKII. The other

dissenting judgment in the ca se was written by Deputy Chief Justice

Zondo.

3

Economic Freedom Fighters v Speaker of the National Assembly and Others

2016 (3) SA 580 (CC). See also, M Tsele, ―Coercing Virtue‘ in the

Constitutional Court: Neutral Principles, Rationality and the Nkandla

Problem‖ (2016) 8 Constitutional Court Review 193 (arguing that the Nkandla

case is deeply disheartening; that the Court‘s decision lacks substance and

rigour a nd reads more like a pastoral and sermonic musing than a well -

reasoned decision of the most senior court in South Africa.)

4

United Democratic Movement v Speaker of the National Assembly and Others

2017 (8) BCLR 1061 (CC) (herein as the Secret Ballot case).

5

Nkandla (2) at para 93; and Ngcobo S ―Why Does the Constitution

Matter?‖ 2016 Gallagher Estate, Johannesburg at 21-24, available at

http://www.hsrc.ac.za/uploads/pageContent/7058/HSRC%20Public%2