In approaching the Constitutional Court over Phala Phala, President Cyril Ramaphosa had undermined the work of parliament, said ATM leader Vuyo Zungula in an affidavit to the apex court this week.
Zungula had tabled the motion for Ramaphosa’s impeachment and was responding to the president’s application to declare invalid the report of the independent panel that found he had a case to answer. Zungula said parliament could accept or reject the panel's report — “but it is for the assembly to make this decision”.
Zungula also said that, as “a matter of principle”, the independent panel’s report could not be subject to judicial review. It was an investigative report that was “merely recommendatory in nature”. It did not make final decisions “capable of creating direct consequences”.
He said it was wrong for the president to approach the Constitutional Court directly. This was not a case that fell within the exclusive jurisdiction of the highest court, as claimed by Ramaphosa. The president had said that only the Constitutional Court could hear this case as he was alleging a failure by parliament to fulfil a constitutional obligation.
But the panel was independent, said Zungula. “Members of the panel are not members of parliament. They have a duty to be independent of party politics, and the interests of the members of the assembly,” he said. The panel’s work could not be attributed to parliament as an institution.
Nor was it in the interests of justice for the highest court to hear the application directly, said Zungula. The highest court should not be the first and last court to hear and decide important questions of law. “It is in the interests of justice that this court has the benefit of other courts interpreting the impeachment rules, before it finally pronounces on the interpretation of the rules.”
Ramaphosa had not fairly represented the findings and analysis of the panel in his application. “The president has not made out a case for the irrationality of the contents of the report and its recommendations.,” he said.
The panel found Ramaphosa may have breached a constitutional prohibition on him engaging in paid work because it was “clear” that he was engaged in the business of Phala Phala. “The fact that he was not employed by Phala Phala was irrelevant. The president made business decisions for Phala Phala,” Zungula said. The panel found it was insufficient that Ramaphosa reported the theft to police general Wally Rhoode. “On the president’s own version, he did not report the theft to the Hawks, as he was required to do and he did not instruct Gen Rhoode to report the crime to the Hawks,” said Zungula.
Nor was it correct to say the panel did not inquire into whether the president had acted in bad faith. “The panel did find that the president may have acted in bad faith,” said Zungula, referring to sections of the report where the panel found that conduct was “deliberate”.
The Constitutional Court should not entertain the application, he said. Even if it did, the report was not capable of review and the president had not made out a case for what he was asking for.
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