How Section 89 works

Section 89 of the constitution contains three specific grounds; The National Assembly may remove the president from office (with a supporting vote of at least two thirds of its members), only when the president:

• Has committed a serious violation of the constitution or law
• Has committed serious misconduct
• Or suffers from an inability to perform the functions of office.

University of Cape Town Associate Professor in Public Law Richard Calland discussed in a The Conversation article, the fact that this is a parliamentary process, triggered by a particular section 89 motion, required an objective test to be met which was of very great significance because it required evidence-based finding be made in relation to one or other of the three grounds.

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The rules provide for a two-stage process to establish whether such evidence exists to justify the removal of the president from office.

• The first step is that after the motion has been tabled in parliament, the National Assembly must set up a panel to conduct a “preliminary enquiry relating to a motion proposing a section 89 enquiry.”
• The underlying purpose of the panel is to prevent spurious or vexatious impeachment attempts to proceed without any proper evidential basis.
• Accordingly, the panel must be composed of “three fit and proper, competent, experienced and respected South Africans, which may include a judge, and who collectively possess the necessary legal competence and experience.

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