EFF leader Julius Malema has asked the Constitutional Court to throw out the Western Cape judgment that halted the impeachment process against President Cyril Ramaphosa.
The EFF has asked the Constitutional Court to grant it access to directly appeal the high court judgment that stayed the impeachment process into the theft of foreign currency found at Ramaphosa’s Limpopo farm until his application challenging the section 89 panel report has been concluded.
Malema argues that though Ramaphosa’s judicial review application will be heard before the end of this year, the issues he raises in his appeal are so urgent and burning that they cannot be subjected to court processes at the lower courts.
“Although the review application may be settled before the end of this year, the issues in this appeal are burning and enduring. They go beyond this case, and affect all future impeachment processes in parliament,” said Malema in his founding affidavit.
“That is why this court is invited to pronounce itself on this very important matter ― if not for the sake of this particular matter, then certainly for re-establishing the correct position in very important matters of this nature.”
In any case, he says, had he appealed the interdict ruling at the Western Cape high court where the matter was heard, Ramaphosa could still decide to appeal that judgment should the court not rule in his favour and throw out the section 89 panel report.
Should that happen, then the impeachment process would face yet another delay.
“Further, given the likelihood of appeals in the review application, the interim status quo will negatively impact this particular impeachment process,” says Malema.
The EFF, through its leader Malema, contends that in granting Ramaphosa his interdict, the Western Cape high court failed to “pay due regard” to a previous ruling by the Constitutional Court in an Outa matter wherein the court held that a temporary restraining order must not encroach on the work of other branches of government.
The ruling the EFF quotes further reads: “Court must be astute not to stop dead the exercise of executive or legislative power before the exercise has been successfully and finally impugned on review.”
The judgment the EFF relies on states that in deciding an interim order pending another review case, the court would in effect be usurping the role of the review court.
“Ordinarily the appellate court should avoid anticipating the outcome of the review except perhaps where the review has no prospects of success whatsoever,” the ruling reads.
Malema argues that even though the Constitutional Court judgment that ignited the impeachment process did not make a ruling on the correctness of the section 89 panel report, the court would not have ordered parliament to initiate proceedings based on that report had it not considered the report to be valid.
“Crucially however, the high court’s minority judgment (paras 31 to 37) extensively dealt with how the president has no prospects of success at the review court ― a contention that the majority did not bother itself with,” contends Malema.
“This appeal turns on a key question: given the facts of this matter, may parliament be disabled from discharging its constitutional duty while the president challenges the lawfulness of an independent panel report that gave rise to that duty?”
Moreover, this immobilisation is effected at the request of the president. Such relief poses profound questions to all three branches of government, having regard to the fact that it is the Constitutional Court that ordered that the panel report be referred to the impeachment committee.
— Julius Malema
Malema argues that the panel report Ramaphosa is taking on review is still a valid document at least until after the conclusion of that court case. He says a minority judgment in the interdict case argues that there was no court finding invalidating the panel report and that in the absence of such a court order, the impeachment committee ought to continue with its work. That judgment, Malema says, states that a “mere” review application does not automatically invalidate the report.
“The EFF submits that the lower court did not give due regard to this consideration. Further, the referral of the report to the committee remains operative,” says Malema.
“The committee has started its work. Yet parliament has been disempowered at the critical moment notwithstanding the president having not challenged or impugned its decision to proceed with the impeachment committee.”
He says that the interdict ruling was in its nature a “constitutional interdict” in that it hindered parliament from carrying out its constitutional obligations.
“Moreover, this immobilisation is effected at the request of the president. Such relief poses profound questions to all three branches of government, having regard to the fact that it is the Constitutional Court that ordered that the panel report be referred to the impeachment committee,” says Malema.
“The president downplays this fact by suggesting that all the order did was merely refer the panel report without necessarily ordering how and when it is to be dealt with. Regrettably the lower court upheld this notion.”
This, he says, is at odds with what the Constitutional Court intended when it ordered the impeachment committee must continue with its work without delay.
“Accordingly, both the president and the lower court misdirected themselves in finding that this court’s order makes no provision for how and when the panel report was to be dealt with once referred to the impeachment committee. This makes the impugned high court order appealable, amongst various other reasons that I will deal with in this affidavit,” says Malema.
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