The Constitutional Court said on Monday it would hear the EFF’s application to set aside parliament’s decision not to refer President Cyril Ramaphosa to an impeachment committee over the Phala Phala scandal.
In directions issued on Monday, the apex court said the EFF’s application — brought directly to the Constitutional Court on the basis that the ConCourt has exclusive jurisdiction — was “set down for hearing in due course”.
Parties to the case were given dates in July by which to file their written arguments.
The case seeks to revive the report of an independent panel, chaired by former chief justice Sandile Ngcobo, which made prima facie findings that Ramaphosa may have violated the constitution and the law after looking into information provided in an impeachment motion by the ATM and EFF about the burglary at Ramaphosa’s Phala Phala farm in 2020.
In December 2022 parliament voted not to adopt the panel report, with the ANC saying the report was flawed.
The EFF said in its court papers to the ConCourt, filed in February this year, that this was a dereliction of parliament’s constitutional duty to hold the president to account.
The EFF has asked the court to declare that the National Assembly’s December 2022 decision was irrational in law and in breach of the constitution. It wants the court to substitute parliament’s decision with its own: that the report is adopted.
It has also asked the court to find unconstitutional the parliamentary rule that allows parliament to consider the report and decide whether to proceed further. The EFF says once the panel decides there is a prima facie case, the matter should immediately proceed to an impeachment inquiry.
“The EFF believes that this is the only manner to effectively hold the president accountable under section 89 of the constitution, as it constrains the majority parties’ ability to ‘toe the party line’,” said EFF leader Julius Malema in his affidavit.
Malema said the ANC’s approach — citing media reports that ANC members would have been disciplined if they had voted against the party position — ran contrary to the oath that MPs took and “demonstrates a concerning attitude that the majority party will use its numerical strength to politically exonerate and protect its leader”.
But Ramaphosa’s attorney, Peter Harris, said in an answering affidavit that the panel’s report was fundamentally flawed.
The need to investigate the president’s prima facie breach of the constitution ... should trump an attempt to let the president escape accountability on a flimsy basis like parliament has done here
— Julius Malema, EFF leader
He said Ngcobo’s panel had misunderstood its mandate and therefore asked the wrong question — instead of asking whether there was “sufficient evidence” for a finding that the president seriously violated the constitution or the law, the panel’s members asked whether there was a prima facie case.
The way the panel had treated the information before it — ignoring the rules of evidence — was also wrong, said Harris.
“The National Assembly was ... correct because it was clear from the independent panel’s report that it did not have any evidence, least of all sufficient evidence, that the president had been guilty of serious misconduct of the kind required by section 89(1) of the constitution,” said Harris.
The EFF’s application was “hopelessly out of time”, he added.
Malema had said the interests of justice warranted the court accepting the case even at this stage. “The need to investigate the president’s prima facie breach of the constitution ... should trump an attempt to let the president escape accountability on a flimsy basis like parliament has done here,” he said.
But Harris said the EFF had already brought an earlier case in January 2023 to the ConCourt, which was rejected. “The EFF then delayed for a full year before launching the current application ... It does not offer any explanation for it,” said Harris.
The application was “part of the EFF’s electioneering strategy and an abuse of this court and court processes in general”, he said.
Former acting speaker of parliament Lechesa Tsenoli also said the EFF had unreasonably delayed. He said there was no prospect that an impeachment enquiry could be completed before the expiry of the sixth parliament and the National Assembly’s rules said its business lapsed when it dissolved.
The amendment to parliament’s rules sought by the EFF would “shift” parliament’s power from itself to the independent panel, said Tsenoli.
For a court to direct parliament to “accept the opinion and decisions of outsiders (non-members of the National Assembly) on whether or not the president has a case to answer” would breach the separation of powers, he said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.