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Only the Constitutional Court has the jurisdiction to decide on the Phala Phala saga, parliament’s impeachment committee chair Makashule Gana argues.
He is opposing President Cyril Ramaphosa’s urgent application to interdict the committee inquiry process.
Gana, in an affidavit filed on Monday before the Western Cape High Court, argues the high court does not have jurisdiction to decide on the president’s application for an interdict to halt the commencement of the impeachment inquiry.
“The high court simply lacks jurisdiction to stay the implementation of the order of the Constitutional Court. In my view, only the Constitutional Court may stay its own order. The president ought to have approached the Constitutional Court for the relief of the nature he seeks in the high court,” Gana argues.
The legal point was initially advanced by parliament’s legal team advocate William Mokhare. It was debated by the members of the impeachment committee, with some disagreeing with the legal position.
Gana pins his argument on jurisdiction on the Constitutional Court’s May judgment, which set aside the vote of the National Assembly in 2022 not to adopt an independent panel report. The report found the president may have violated the constitution in how he handled the theft of $538,000 from his Phala Phala game farm in 2021.
The top court referred the report, authored by former chief justice Sandile Ngcobo, retired judge Thokozile Masipa and advocate Mahlape Sello, to the impeachment committee for a full-blown investigation.
“The committee has reservations as to the authority of the high court to entertain an application which seeks to halt the implementation of the order of the Constitutional Court. On the proper reading of the order of the Constitutional Court, it is not susceptible to alteration or stay by a lower court,” Gana contends.
In the prayers for his urgent application, the president does not challenge the Constitutional Court’s order referring the matter to the impeachment committee. Rather, he seeks to halt the commencement of the proceedings pending a review application aimed at setting aside the independent panel report’s findings. Should the report be set aside, the impeachment process would fall away.
Gana argues if the high court does not agree with him on the jurisdiction issue, he contends to grant the interdict; the court “will be constrained by the separation of powers doctrine”.
The constitution empowers parliament to undertake a process to remove a president in a case of serious misconduct.
“There is only one obligation that is imposed on the committee by an order of the Constitutional Court to undertake an impeachment process. The committee is duty-bound to perform the function in accordance with its constitutional obligations imposed in section 237 of the constitution and to do so without delay, given that this is a matter of huge public importance and should not be delayed,” Gana argues.
He rejects the president’s arguments that he would suffer harm should the impeachment committee proceed without a decision on the review application.
Gana argues that as the chair of the commission he has a duty to ensure the integrity of the process and guard against unwarranted attacks during the impeachment process.
The case has yet to be heard in the high court.
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