Impeachment rules to be tested in Concourt

The EFF will be in the Constitutional Court on Tuesday, challenging parliament's decision not to hold an impeachment inquiry into the president's Phala Phala controversy.

Up against President Cyril Ramaphosa, the ANC and the National Assembly, the EFF says the case is about “presidential accountability under the auspices of the National Assembly”.

“Despite having a prima facie case to answer, the president's version has never been tested. Neither has the president been exonerated. That is a constitutional scandal,” says EFF counsel Kameel Premhid in his written argument. 

A motion by the African Transformation Movement (ATM) party to impeach the president over Phala Phala was voted down by the National Assembly in December 2022. Parliament rejected a report by an independent panel, chaired by retired chief justice Sandile Ngcobo, which found that he had a case to answer for possible “serious violations” of the constitution and the law. 

So far, Ramaphosa has survived several investigations, including by the public protector and the Reserve Bank, into whether he acted unlawfully in the events surrounding the burglary at his Phala Phala game farm in February 2020.     

The exception is the report of Ngcobo’s panel. But the report was widely criticised and the president immediately challenged it in the Constitutional Court, saying the panel had “misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges” against him in the impeachment motion.

'The president's version has never been tested. Neither has the president been exonerated. That is a constitutional scandal' 

—  EFF counsel Kameel Premhid

The court sent him packing — not because his case was bad necessarily, but because he should not have gone directly to the highest court. However, by the time the court pronounced, things had moved on: parliament had already shot down an impeachment investigation.

But now, through the EFF’s latest case, the presidential impeachment process is once again before the apex court.

Apart from the potential political implications for the president, the case may have important long-term legal implications. The rules governing presidential impeachment have not been considered by the Constitutional Court until now. The EFF argues that, once an independent panel has found the president has a case to answer, parliament may reject it only on very limited grounds.

Otherwise, the process would be open to abuse: a majority could close ranks to protect their leader from further investigation by parliament, no matter how serious the allegations. This would breach parliament’s constitutional duty to hold the president to account, argues Premhid.   

Parliament has a “loose” rather than a “true” discretion, he argues. It can reject the report only if it fails to show that the president has a case to answer. Parliament cannot “mark the panel’s homework” further.

But the president’s counsel, Wim Trengove SC, argues that Ngcobo’s report was “fundamentally flawed”. The rules require the panel to make findings based on “sufficient evidence”, yet Ngcobo’s panel made its decision based on “information”. There is a difference.

The president’s court papers detail how the information provided to Ngcobo’s panel lacked credibility: the information was hearsay and may have been unlawfully obtained, said the president’s lawyers, and the panel misunderstood its mandate by accepting it.

Ramaphosa’s attorney, Peter Harris, says: “It is not an answer for the independent panel to say that its function is not to establish veracity. Its duty is to establish sufficient evidence. The starting point is that the evidence must qualify as admissible, reliable and credible.”

Trengove also argues that the panel “failed entirely to inquire into the question whether the president had acted in bad faith” — as the rules also require. 

MPs were entitled to consider these and other defects in the report and reject it, said the ANC in its written argument, and this is in fact what happened, says counsel for the ANC Tembeka Ngcukaitobi SC. 

The ANC concluded that it could not accept the report because, as former justice minister Ronald Lamola said to the house when the motion was debated, its “flaws are patent, material and clear for all to see”. 

Ngcukaitobi argues it is a “fallacy” to argue, as the EFF does, that there was a climate of fear in the party and that this led its MPs to vote against an impeachment inquiry. “The resolution of the ANC members was not a knee-jerk reaction to blindly protect the president; it was a carefully considered position,” he says.

“The evidence shows ANC MPs voted in accordance with their own choices, and that those ANC MPs who wished to vote for the adoption of the panel’s report did so.”

But even if the EFF had established that ANC MPs voted in accordance with their party’s instructions, this would not render the vote irregular, argues Ngcukaitobi. South Africa’s electoral system contemplates voting in line with a party position. This has been confirmed several times by the Constitutional Court, he says. 

Trengove argues further that, even if a report is not fundamentally flawed, the National Assembly still retains a “residual discretion” to decide whether to proceed to an impeachment inquiry.

Another line of the EFF’s case is that the rule that allows parliament to reject the panel’s decision is unconstitutional. But counsel for parliament, Andrew Breitenbach SC, argues that just because a rule (or law) may be open to abuse, this does not make it unconstitutional.

Any rule or law is capable of being abused, says Breitenbach. The answer is to challenge that specific incident of abuse in court, not to invalidate the law. Only if the rule will “invariably be abused” will it be unconstitutional.