The “true reason” the National Assembly decided not to proceed with an impeachment inquiry into the Phala Phala controversy was because ANC MPs were instructed to vote that way as it was “politically appropriate”, the EFF said in a legal argument with the Constitutional Court.
“That is not a legally cognisable answer,” said the EFF’s lawyers in court papers filed at the apex court last week.
The EFF has asked the ConCourt to declare unlawful parliament’s decision to reject the report of an independent panel, chaired by former chief justice Sandile Ngcobo, which found that President Cyril Ramaphosa had a case to answer on Phala Phala.
It wants the court to substitute parliament’s decision with its own, and order an impeachment inquiry to go ahead.
In a vote in December 2022, the National Assembly decided not to hold an impeachment inquiry into allegations made in a motion by the ATM and EFF about the burglary at Ramaphosa's Phala Phala farm in 2020 even though the panel found, on a prima facie basis, that Ramaphosa may have violated the constitution and the law.
In its written legal submissions to the Constitutional Court, the EFF argued that the rejection of the panel’s report was a breach by the National Assembly of its constitutional duty to hold the president accountable.
Though a panel’s report may be rejected in terms of parliament’s impeachment rules, it may not be rejected for unlawful reasons, said the EFF’s team of counsel, led by Kameel Premhid.
The EFF also wants the court to order that the rules governing the impeachment of the president are unconstitutional because they allow a majority party “that seeks to protect its party leader ... to vote down the report, even if the panel finds sufficient evidence that the president violated the constitution”.
Premhid said the ANC’s stated reasons — given in the house during the debate — made the decision “patently irrational”.
He said the ANC had claimed the panel had misunderstood its mandate — because the panel had not shown how the information it was given was “converted into evidence”. Then, former justice minister Ronald Lamola had also said in parliament that the panel had not made a distinction between “sufficient evidence” (what the panel should have had to make a finding against Ramaphosa) and “prima facie evidence” (what the panel said it had enough of to find against Ramaphosa).
“The panel set the bar far too low to impeach a sitting president, that both prima facie and insufficient evidence is the same,” said Lamola, according to the EFF’s court papers.
But Premhid said Lamola was wrong on both of these scores. He said the ANC did not understand the panel's role.
The National Assembly ought to have voted to adopt the panel’s report. This is because the panel did what it was supposed to do
— Kameel Premhid, for the EFF
The impeachment rules themselves require the panel to consider “information”, he said. The panel looks at the information and then decides whether, based on that information, there is sufficient evidence, he said. This is what the panel did, he said.
In their court papers, the president and the ANC had said that much of the information the panel had relied on was not evidence because it was hearsay. But this was not mentioned by MPs making the decision at the time, said Premhid.
“It is trite that the test for rationality is only concerned with the reasons that influence the decisionmaker at the time of making the decision, and afterthought justifications are irrelevant,” he said.
The distinction between sufficient and prima facie evidence was also a “misconception”, said Premhid. As a matter of law, they amounted to the same thing. The report, therefore, met the test “for the progression of the matter to the impeachment committee”.
“The National Assembly ought to have voted to adopt the panel’s report. This is because the panel did what it was supposed to do,” he said.
Instead, MPs were instructed to vote against the motion. “That its purpose or effect was to protecting their party leader (the president) rather than doing their constitutional duty of holding him accountable makes the EFF case stronger not weaker.”
Premhid said the EFF’s case was not about disrupting the party representation system. “It is about the line to be drawn between political discipline and constitutional obligation. We submit the ANC has crossed the line,” he said.
Ramaphosa and the ANC are yet to file their legal arguments.
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