The Constitutional Court has set down November 26 to 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.
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 Limpopo 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, this was a dereliction of parliament’s constitutional duty to hold the president to account.
The EFF believes 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’.
— Julius Malema, EFF leader
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 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’,” EFF leader Julius Malema said in his affidavit.
He 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. 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 Ramaphosa 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.
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