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[FILE IMAGE]: The Constitutional Court.
Has the boat sailed for the National Assembly to hold the President accountable for the Phala-Phala farm saga? This question thematically dominated proceedings in the Economic Freedom Fighters (EFF)’s bid to revive the saga in the Constitutional Court.
The party challenged the rationality of the National Assembly’s 13 December 2022 decision to not adopt the Section 89 Independent Panel Report into Phala-Phala and the rules that permitted this.
The EFF’s bid to ensure that the National Assembly upholds its duty to hold the executive to account in so far as it voted against the adoption of the S89 Independent Panel report, which found that the President may have a case to answer, has faced several hurdles.
The most prominent being that the challenge arrives as the sixth democratic parliament has closed its business of the day and the seventh democratic parliament is well underway. Meaning that if the EFF was successful in obtaining the remedy it seeks, the panel report would have to be referred back to the seventh parliament.
The EFF’s bid was vehemently opposed by the Speaker and the National Assembly, the ANC and the President, whose legal counsel echoed similar sentiments that the bid was “ill-founded”, simply “too late” and also highlighted the seriousness of an impeachment process that should not be used as a “fishing expedition”.
‘NA’s handling irrational’
The African Transformation Movement (ATM)’s lawyer has argued that it was irrational for the African National Congress to rely on the completion of the investigations that looked into the conduct of President Cyril Ramaphosa.
Advocate Anton Katz has submitted that it was irrational for the ANC to vote against adopting the Section 89 independent panel report on Phala Phala on that basis.
Katz has submitted before the bench of the Constitutional Court that only the National Assembly has the Constitutional mandate to look into the impeachment of a Head of State and not the other bodies the ANC relied upon.
“What have the Hawks to do with this case? What does the Reserve Bank got to do with this case? What does SARS have to do with this case? What does the Public Protector got to do with this case? Nothing! They are involved in criminal investigations into the President’s conduct,” says Katz.
He has argued that Parliament is the only body that can deal with impeachment, describing the manner in which the National Assembly dealt with the issue as irrational.
“There’s only one body that can deal with impeachment, the National Assembly. What could the ANC have done rationally? They could have said to parliament, ‘Let’s wait. Let’s postpone the vote.’ But how can they vote down a resolution on the basis of other pending procedures in other bodies, other state institutions? And we say, that, in and of itself, is the height of irrationality.”
Advocate Andrew Breitenbach for the National Assembly and the Speaker has argued in the Constitutional Court that the legal challenge launched by the Economic Freedom Fighters (EFF) is moot due to the time that has elapsed since the Section 89 report on Phala Phala was not adopted by the National Assembly.
Panel report
In 2022, the national legislature voted not to adopt the independent panel report led by retired Chief Justice, Sandile Ngcbobo that found that there is a prima facie case for which President Cyril Ramaphosa must answer for the events that took place on his Phala Phala farm.
The Constitutional Court in Johannesburg is hearing the EFF’s challenge against this decision.
“Our basic problem with the lateness is that the 6th parliament came to an end. With it, all the business of the 6th parliament, the composition of the 7th parliament elected on the 29th of May is wholly different to the 6th parliament and there can, therefore, be no resuscitation of this motion without doing violence to that very fundamental part of our democracy. Every five years, we have an election and a new National Assembly is elected. It’s very differently constituted, so we are in a situation of impossibility, mootness,” explains Breytenbach.
Phala Phala Case | EFF pickets outside ConCourt – Natasha Phiri reports
