Courts cannot review Phala Phala report — EFF asks ConCourt to throw out Ramaphosa’s case

The EFF wants parliament’s vote, on the section 89 report into the Phala Phala scandal last month that rejected the panel’s report, to be declared invalid and set aside.

Instead a new date must be set within 30 days of the order to undertake the vote on the report anew.

This is in court papers the EFF has filed seeking leave to join President Cyril Ramaphosa’s Constitutional Court case to review and set aside the report which found he has an impeachable case to answer to the theft of millions in foreign currency from his Limpopo farm in 2020.

In a filed affidavit, EFF deputy president Floyd Shivambu argues that the report Ramaphosa is challenging cannot be reviewed as the panel was not tasked with taking a “judicial and/ or scientific decision” but theirs was the “humble” task of determining whether there was a prima facie evidence of wrongdoing to advise the National Assembly on what course of action to take regarding the scandal.

“To the extent that the report does not provide binding recommendations, our courts have established that such recommendations/decisions are inchoate and not reviewable as a matter of principle,” Shivambu argues.

“There are other steps and decisions to be made that could lead to the president not being impeached. All this speaks to the infancy of the process that could hardly render the report ripe for reviewing.”

In fact, Ramaphosa rushed to court in haste instead of waiting first to find out whether the National Assembly would accept the report’s recommendations.

Shivambu further argues that the panel’s report was not part of the section 89 process, as the impeachment process only kicks in once the National Assembly takes a decision on the report.

“Given all these permutations and the infancy of the report in the entirety of the impeachment process and the separation of powers principle, it cannot be conceivable that the report is reviewable, especially given the technical and fundamental debatable points raised by the president,” Shivambu argues.

“Ultimately, the president retains the right to have a review and set aside the National Assembly’s eventual decision, should it choose to impeach the president, which a review application could well include the report. It is just not desirable for this court to deal with that application in piecemeal fashion.”