At a point on Tuesday, EFF leader Julius Malema was making a fiery speech to supporters outside the Constitutional Court. But you would not have known it from the inside, where the atmosphere was one of muted concentration. Despite the political sensitivity of the Phala Phala controversy, judges and counsel focused on the law and the intricacies of the rules governing the impeachment of the president.
The case threw up several “difficult” legal questions, arising from the careful balance the constitution strikes between the roles and responsibilities of the different arms of state: the constitution gives parliament the duty to hold the executive to account. By design, that role is given to politicians (MPs) but, for the majority, the president is their leader — an apparent tension. In all this, what role do the courts play?
“The National Assembly consists of politicians. Only politicians. The constitution says these politicians must decide on impeachment. The constitution-makers knew, as we all know, that they were conferring this power on politicians, not on judges or courts,” said Geoff Budlender SC, counsel for the president.
The EFF argued that parliament failed in its duty to hold the president to account when it voted not to hold an impeachment inquiry into the Phala Phala burglary scandal. The MPs, majority ANC, had closed ranks to protect their leader in rejecting a report by an independent panel, chaired by former chief justice Sandile Ngcobo, which found Ramaphosa had a case to answer for serious violations of the constitution and the law. The impeachment rules were unconstitutional because they allowed this, argued the EFF.
The EFF wanted the court not only to declare that parliament’s decision not to hold an impeachment inquiry was unconstitutional but also to step into the shoes of parliament and order an impeachment inquiry. The EFF and the ATM party wanted the apex court to declare as unconstitutional the rule that gives the National Assembly the discretion to reject the panel’s report.
The constitution-makers knew, as we all know, that they were conferring this power on politicians, not on judges or courts
— Geoff Budlender SC, counsel for the president
Meanwhile, the president, the ANC and parliament had raised several preliminary procedural objections to the EFF’s case. One of these, which seemed to weigh with the bench, was how long the EFF took to bring its case — 14 months from parliament’s vote in December 2022. Parliament argued this “unreasonable delay” — to the point that the motion would have lapsed because there was now a new parliament — meant the orders sought on the impeachment motion were “moot”, or only of academic interest.
Parliament’s counsel, Andrew Breitenbach SC, referred to a 2008 decision of the Constitutional Court which said that when there was an inordinate delay, no reasonable explanation for it and then mootness was added, “an additional hurdle”, the combination meant an “insurmountable obstacle”.
“It does concern me that there is no explanation for the delay,” Justice Leona Theron told EFF counsel Kameel Premhid. She said the delay was raised by the president and parliament in answering court papers. The EFF could have responded but did not. “It’s just too glib to say there are other factors the court can consider,” she said.
Premhid admitted that there was no satisfactory explanation but said this was not a reason to kick the case out of court. At most it could affect the orders the court granted, he argued. The delay also would not affect the case about the constitutionality of the rules, argued Anton Katz SC, counsel for the ATM party.
If the court does not throw out the case, the president and the ANC argued the independent panel report was “hopelessly flawed” and MPs were entitled to reject its recommendations.
The impeachment rules had a step-by-step process — with different decision-makers asking different questions at each step, said Budlender. First, the speaker of parliament decides whether the impeachment motion discloses a prima facie case for impeachment. If so, the motion is sent to an independent panel. Then, the independent panel looks at the information it is given and determines if there is “sufficient evidence” to find impeachable conduct — a “weightier” inquiry than the prima facie one, said Budlender.
The panel had wrongly asked the same question as the speaker. “And you don’t get the right answer, if you ask the wrong question,” said Budlender.
But Premhid argued the distinction between prima facie and sufficient evidence was “semantic quibbling”. The report explained how the panel approached the evidence and decided that there was no real difference between the two. Looked at as a whole, the report had found sufficient evidence, he said.
Counsel on both sides were grilled at length on this, with judges asking what “sufficient evidence” and “prima facie” meant, whether there was really any difference between the two and, on the other hand, if the rules used “prima facie” first, and then “sufficient evidence” later, whether that did not signify that they must mean something different. Who decides whether there is sufficient evidence, asked Theron. If it were the National Assembly, would there ever be an impeachment?
Budlender said the question the court had to decide was “not whether the panel was right or wrong in what it said, and not even whether the assembly was right in the decision it made. It is whether the decision was one the assembly was entitled to make.”
Counsel for the ANC, Tembeka Ngcukaitobi SC, argued the “misdirections” in the report motivated ANC MPs to vote against an impeachment inquiry and they were entitled to do so.
If the court decides there was an unreasonable delay, it may avoid resolving this debate. But the question of the constitutionality of the rules may remain.
The rules were adopted after a 2017 judgment of the Constitutional Court (called “EFF 2” in court), which found the National Assembly had failed to put all appropriate mechanisms and processes in place to hold the president accountable.
In court on Tuesday, Justice Jody Kollapen asked whether these rules gave the National Assembly a “wide and unfettered discretion to do with the report as it pleases”. He suggested the rules were “worryingly silent” on the responsibility of the assembly when it received the report from the independent panel. Theron questioned whether the rules met the standard of what was required in EFF 2.
Breitenbach said the discretion was not unfettered. Read in context, and in line with its purpose, the rules were clear that the assembly was meant to ask whether there was sufficient evidence to proceed to an impeachment inquiry. The assembly was also constrained to act rationally, he argued. The rules “are fit for purpose”, he said.
Judgment was reserved.
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