Parliament’s lawyers have advised MPs against judging President Cyril Ramaphosa’s impeachment case using the same standard applied in criminal courts, warning that the constitutional process is unlike any other legal proceeding and requires its own test.
The legal opinion, prepared for Parliament’s section 89 impeachment committee, comes as the committee is simultaneously fighting in the Constitutional Court to overturn a Western Cape high court ruling that temporarily halted its work.
Committee chairperson Makashule Gana argues in court papers that stopping the inquiry prevents Parliament from carrying out one of its most important constitutional oversight functions and undermines the National Assembly’s ability to hold a sitting president accountable.
The legal opinion, prepared by Parliament’s Constitutional and Legal Services Office for Gana, says neither the constitution nor the National Assembly’s rules prescribe a standard of proof for determining whether a sitting president should be removed from office.
Instead, the opinion recommends that the committee adopt an evidence-based approach requiring findings to be supported by “cogent, reliable and persuasive evidence” capable of satisfying constitutional principles of legality, rationality and procedural fairness.
The 18-page opinion examines one of the most contested questions surrounding the inquiry: what level of evidence MPs should require before concluding that a president has committed a serious violation of the constitution or the law, serious misconduct, or is unable to perform the functions of office.
The lawyers conclude that the criminal standard of proof beyond reasonable doubt is inappropriate because an impeachment inquiry is not a criminal trial.
“The impeachment committee is not determining criminal guilt or imposing a criminal sentence on the president,” the opinion states, adding that while removal from office carries severe consequences, the purpose of the process is constitutional oversight and accountability rather than punishment.
The committee’s view is that once it is constituted, it is obliged to do its work to conclusion and submit a report to the National Assembly. It is thus inappropriate for a court to halt such constitutionally endowed process which seeks to hold the president accountable.
— Makashule Gana, committee chairperson
It also cautions against simply adopting the civil standard of proof, known as the balance of probabilities.
Parliament’s lawyers argue that some legal scholars believe it sets too low a threshold for a decision as significant as removing a democratically elected head of state.
The legal advisers describe impeachment as a process that is unique and cannot easily be compared with either civil or criminal court proceedings.
They note that the 31-member impeachment committee is made up of politicians rather than judges and is carrying out a constitutional oversight function, making it inappropriate simply to import legal standards developed for the courts.
The opinion says the committee must conduct what the Constitutional Court has described as an “inquisitorial, factual and legal exercise”.
That requires MPs to determine what happened, identify the applicable legal requirements and then decide whether the evidence establishes the charges contained in the impeachment motion.
The affidavit filed by Gana echoes that reasoning, arguing that the committee’s work is constitutionally distinct and should not be interrupted before Parliament has completed its oversight role.
“The committee’s view is that once it is constituted, it is obliged to do its work to conclusion and submit a report to the National Assembly. It is thus inappropriate for a court to halt such constitutionally endowed process which seeks to hold the president accountable,” Gana says in the founding affidavit.
He argues that allowing the interim interdict to remain in place effectively suspends Parliament’s constitutional powers and creates uncertainty over the National Assembly’s ability to perform one of its core accountability functions.
In reaching its recommendation on the standard of proof, Parliament’s legal team examined impeachment systems in the US, Germany, South Korea and Kenya.
The comparative study found that the United States has no fixed standard of proof, leaving senators to decide according to their own judgment, while Germany and South Korea rely on constitutional courts to determine impeachment cases using judicial standards.
Kenya, whose constitutional framework closely resembles South Africa’s, has developed what courts there describe as an intermediate standard of proof that is higher than a balance of probabilities but lower than proof beyond reasonable doubt.
The opinion also draws heavily on Parliament’s section 194 inquiry into former public protector Busisiwe Mkhwebane’s removal from office.
That committee similarly declined to adopt a formal standard of proof and instead treated its work as an inquisitorial fact-finding exercise aimed at determining whether the evidence justified removal from office.
Parliament’s lawyers recommend that the impeachment committee follows a similar path by ensuring that every finding against the president is grounded in compelling and reliable evidence rather than political preference.
The committee’s Constitutional Court application argues that the inquiry itself must be allowed to proceed without judicial interference until Parliament has fulfilled its constitutional mandate.
Gana maintains that the case raises constitutional questions of general public importance and that the appeal should be heard urgently because of its implications for the separation of powers and Parliament’s oversight responsibilities.
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