Parliament goes ahead with impeachment plans despite interdict

Parliament’s impeachment committee is forging ahead with its preparatory work despite a Western Cape High Court interdict that halted the section 89 public hearings pending the outcome of President Cyril Ramaphosa’s review application.

Impeachment committee chair Makashule Gana said the court judgment delivered on Friday merely stopped them from proceeding with public hearings on the matter and nothing else.

Gana’s stance is based on advice from parliament’s lawyers and has received backing from independent legal experts.

Legal analyst Llewellyn Curlewis said the judgment only suspended the public phase of the inquiry and should not be confused with the merits of the president’s review application against the section 89 report on Phala Phala.

“In short, nothing can happen to the president pending the high court revisiting and reviewing the section 89 report,” Curlewis said.

“Everything that the impeachment committee wants to do between now and the review application being determined must effectively be suspended, and once that judgment is delivered, it will determine whether the committee can proceed with the impeachment process.”

Curlewis said there remained uncertainty over whether the committee could continue with behind-the-scenes work while the interdict remained in force.

He said one interpretation was that parliament could continue preparing for a possible hearing by appointing evidence leaders and completing administrative work so that the process could resume quickly should the review fail.

“The other interpretation is that they should simply do nothing and wait until the review application has been argued and determined before taking any further steps,” he said. “What is clear is that the president himself cannot be scrutinised before the review application has been finally determined. He’s off the hook, so to speak, for now.”

While the president’s legal team argued that he has reasonable prospects of success in the review, that was not the question before the court. The judges only considered whether the legal test for an urgent interim interdict had been satisfied

—  Lawson Naidoo, constitutional law expert

Constitutional law expert Lawson Naidoo echoed that view, warning against conflating the interim interdict with the substantive review application.

“They are contested on very different grounds,” Naidoo said. “While the president’s legal team argued that he has reasonable prospects of success in the review, that was not the question before the court. The judges only considered whether the legal test for an urgent interim interdict had been satisfied.”

Naidoo also rejected suggestions that Friday’s ruling conflicted with the Constitutional Court’s earlier judgment, which ordered parliament to establish the impeachment committee.

“The Constitutional Court required parliament to refer the independent panel’s report to an impeachment committee, and parliament has complied with that obligation,” he said. “Justice [Mandisa] Maya also made it clear that the panel’s report is reviewable. That is precisely what the president has done.”

Naidoo said the committee could still continue with preparatory work, including appointing evidence leaders and finalising its terms of reference, but it was prohibited from commencing public hearings or hearing evidence from witnesses while the interdict remained in place.

He added that the ruling was not appealable, meaning parliament would have to await the outcome of the review before the inquiry could move into its public phase.

The review hearings, which will see the president challenging the section 89 report, are expected to take place in the first week of September.

We are not going to interdict ourselves from the parts that the court has not interdicted us. We will continue to prepare ourselves

—  Makashule Gana, impeachment committee chair

Gana said he had met with the committee’s legal team, which advised that only the public hearings had been interdicted pending Ramaphosa’s review application.

He confirmed that the committee’s meeting scheduled for July 29, where members are expected to finalise the appointment of an evidence leader and approve the committee’s terms of reference, would proceed.

“We are not going to interdict ourselves from the parts that the court has not interdicted us. We will continue to prepare ourselves,” Gana said.

The EFF has criticised the high court’s majority ruling, warning it could set a “dangerous precedent”.

The party argued that the court should not have intervened in a process flowing from a Constitutional Court order and endorsed the minority judgment, which found that Ramaphosa had failed to meet the legal requirements for an interim interdict.

DA leader Geordin Hill-Lewis called for Ramaphosa’s review application to be heard as a matter of urgency and said parliament should continue with all preparatory steps permitted by the court so that the impeachment committee is ready to proceed without further delay once the review has been decided.