The Economic Freedom Fighters’ (EFF’s) true complaint in its constitutional court attack on parliament’s decision not to impeach President Cyril Ramaphosa over the Phala Phala controversy is that a democratic process did not deliver the outcome it preferred, the president’s lawyers say. (Darren Stewart/Gallo Images via Getty Images)
The Economic Freedom Fighters’ (EFF’s) true complaint in its constitutional court attack on parliament’s decision not to impeach President Cyril Ramaphosa over the Phala Phala controversy is that a democratic process did not deliver the outcome it preferred, the president’s lawyers say.
The EFF launched its application before the apex court, its second on the subject of the National Assembly’s rejection of the recommendations of the Ngcobo report, in February.
The Ngcobo panel, chaired by former chief justice Sandile Ngcobo, found that the president had, on the face of it, a case of serious misconduct to answer in relation to the origin of forex stolen from his Limpopo game farm and the subsequent clandestine efforts to recover the money.
The panel’s report made for Ramaphosa’s darkest political hour, pushing him to the brink of resignation, before it was rejected by the National Assembly by 214 votes to 148 on 13 December 2022.
In terms of the legislature’s rules, that was the end of the matter, and less than a week later, Ramaphosa was elected to a second term as president of the ANC.
The EFF is asking the court not only to set aside the National Assembly vote but to substitute it with a decision to initiate an impeachment inquiry.
It argues that the decision was irrational because the facts left no room for a reprieve, and that giving Ramaphosa one violated 11 provisions of the Constitution, in particular parliament’s obligation to hold the president to account by way of impeachment as per section 89.
The party also attacks the rules written to give application to section 89, saying they may be open to political abuse by a majority. The case marks the first time the rules are tested in the apex court. The EFF is asking it to declare rule 129I unconstitutional and to give parliament 12 months to amend it.
The rule says the National Assembly must consider the panel’s report and refer the matter to an impeachment committee if it resolves to proceed with an inquiry — in other words it allows the chamber a discretion.
Advocate Kameel Premhid, for the EFF, on Tuesday told the court this was not the unfettered discretion the president’s counsel claimed.
Instead, it was defined by the mandate of the panel. Hence the National Assembly can only reject the report if they believe the panel is wrong on there being a prima facie case against the president.
“All the other reasons that are before you, are incompetent,” he said.
“At the preliminary stage of the investigation, all the National Assembly is asked to do is to vote yay or nay, does prima facie evidence exist.”
It was not open to the chamber to decide, as happened here, that the report was flawed because the panel misconstrued its mandate and considered evidence that was out of bounds or any of the other reasons the ANC caucus invoked to “rubbish” the findings.
“If you don’t constrain that discretion, you get the outcome you have here,” Premhid said.
“They chose the wrong reason and the consequence is that the vote to vote down the panel’s report is an unlawful outcome.”
Allowing parliament to reject an adverse report for any reason it saw fit, inevitably meant that the parliamentary majority would move to protect the president and impeachable conduct would go unpunished.
Therefore, Premhid said in his written submissions, unless the court “intervenes to curtail partisan interests in favour of legality, history will repeat itself”, regardless of the fact that an ANC majority made way for a coalition after the May elections.
“Whether the majority is single-party dominated (pre-2024, by the ANC) or formed by a coalition (post-2024, the government of national unity) is irrelevant.”
Ramaphosa and his legal team have argued from the moment the panel submitted its report that it had misread its mandate because the threshold for proceeding to an impeachment trial was sufficient evidence, not simply prima facie evidence, of a case to answer. The ANC adopted this reasoning in rejecting the report.
Premhid told the court the distinction was not as defined in law as they would have it.
Ramaphosa’s counsel, Wim Trengove SC, maintained that the EFF’s case never rose above a rationality review because the constitutional basis for its attack on the rules was obscure.
Section 57(1) gave the National Assembly control over its own processes and section 89(1) plainly allowed it a discretion to determine how to exercise its power to remove the president, including whether to proceed to a full impeachment investigation.
“Under the rule, as the EFF would have it, the entire process would be beyond the control of the National Assembly until the final vote is taken on the impeachment of the president.”
The implications would be startling, he submitted.
It would mean that parliament could not consider whether there was any real prospect of determining the president’s guilt, or whether it was wise or in the public interest to proceed to an impeachment inquiry.
Trengove said the EFF never pinpointed the provision of the Constitution, which dictates that the National Assembly should have no say until an impeachment inquiry had run its course.
Its argument was inimical to section 89.
“It says that the National Assembly ‘may’ remove the president on the grounds of serious misconduct. It is a discretionary power.”
The difficulty for the EFF was that section 89 does not oblige the National Assembly to remove the president, even if the inquiry established grounds for removal.
And once the Constitution makes removal discretionary, it authorises MPs to vote on the matter. In voting all options are equally competent, Ramaphosa’s attorney Peter Harris said, and therefore the EFF’s rationality complaint falls flat.
“There can be no basis therefore for contending that any of these options is irrational.”
The EFF, in arguing for substitution, submitted that once prima facie evidence was established, there was nothing further to evaluate and an impeachment trial must follow.
Remitting the report to the National Assembly would be a waste of time because the ANC would again contrive to reject it.
It faces the hurdle of the separation of powers, which judges repeatedly raised in questions to Premhid, along with reservations about his reading of the distinction between prima facie and sufficient evidence.
Trengove, in his papers, said the EFF did not begin to make out a case for substitution, which required showing that exceptional circumstances demanded that the court assume a responsibility the constitution entrusted to the legislature.
“It makes no effort to reconcile its attack with section 89(1) of the Constitution, which makes it clear that the power to remove the president is a discretionary power vested in the National Assembly.”
It also missed the point, he said, that the discretion afforded to the National Assembly is not “a judicial discretion, but rather a very wide political discretion as the National Assembly is a political body”.
“It is clear to see from the supposed exceptional circumstances (which can never pass muster) posited by the EFF … that the EFF is not prepared to accept the consequences of a democratic process and that is what it is trying to overturn.”
Harris said the EFF’s complaint that the decision taken by the National Assembly was politically motivated was “naive”.
“It speaks for itself that such a controversial decision taken by the National Assembly will always be politically influenced.”
The ANC is not the only party that was motivated by political persuasion, Harris said.
“All of them were.”
Harris argued that the EFF had a further difficulty in that it could not, as it sought to do, mount its challenge directly under the constitution.
The principle of subsidiarity dictates that in this case the question is whether the National Assembly acted within the rules adopted by parliament to exercise its power in terms of section 89 of the constitution to remove a sitting president for serious misconduct or constitutional breach.
“The insurmountable difficulty for the EFF is that it does not contend that the decision is inconsistent with the Section 89 rules.”
Hence, he said, it mounted an attack on rule 129I.
But forcing an amendment would not assist the EFF, he said, because it could not rely on a declaration of invalidity with retrospective effect to impugn a decision that was valid at the time and remained so until set aside.
The EFF initially approached the constitutional court in early 2023 for direct access to challenge the National Assembly’s decision. It was denied direct access, just as Ramaphosa was a few months earlier when he tried to challenge the panel’s report.
Trengove said the EFF’s political motive for turning to the apex court a year later, with essentially the same case, emerged in a letter it sent to the chief justice in March, asking for an early hearing.
The party said it, and the rest of the country, wanted the matter “adjudicated before the upcoming national elections” and for there to be sufficient time for the National Assembly to implement the ruling.
“The EFF’s motive was, in other words, that this court should speed up its adjudication of the application so as to ensure a debate before the National Assembly on the President’s fitness for office on the eve of the national elections,” Trengove said.
“It is clear that the EFF’s application is driven by its political agenda.”
