The Financial Freedom Fighters’ (EFF’s) true grievance in its constitutional court docket assault on parliament’s choice to not impeach President Cyril Ramaphosa over the Phala Phala controversy is {that a} democratic course of didn’t ship the end result it most popular, the president’s legal professionals say. (Darren Stewart/Gallo Pictures by way of Getty Pictures)
The Financial Freedom Fighters’ (EFF’s) true grievance in its constitutional court docket assault on parliament’s choice to not impeach President Cyril Ramaphosa over the Phala Phala controversy is {that a} democratic course of didn’t ship the end result it most popular, the president’s legal professionals say.
The EFF launched its utility earlier than the apex court docket, its second with regards to the Nationwide Meeting’s rejection of the suggestions of the Ngcobo report, in February.
The Ngcobo panel, chaired by former chief justice Sandile Ngcobo, discovered that the president had, on the face of it, a case of significant misconduct to reply in relation to the origin of foreign exchange stolen from his Limpopo recreation farm and the following clandestine efforts to recuperate the cash.
The panel’s report made for Ramaphosa’s darkest political hour, pushing him to the brink of resignation, earlier than it was rejected by the Nationwide Meeting by 214 votes to 148 on 13 December 2022.
By way of the legislature’s guidelines, that was the top of the matter, and fewer than every week later, Ramaphosa was elected to a second time period as president of the ANC.
The EFF is asking the court docket not solely to put aside the Nationwide Meeting vote however to substitute it with a choice to provoke an impeachment inquiry.
It argues that the choice was irrational as a result of the details left no room for a reprieve, and that giving Ramaphosa one violated 11 provisions of the Structure, particularly parliament’s obligation to carry the president to account by means of impeachment as per part 89.
The get together additionally assaults the principles written to offer utility to part 89, saying they could be open to political abuse by a majority. The case marks the primary time the principles are examined within the apex court docket. The EFF is asking it to declare rule 129I unconstitutional and to offer parliament 12 months to amend it.
The rule says the Nationwide Meeting should contemplate the panel’s report and refer the matter to an impeachment committee if it resolves to proceed with an inquiry — in different phrases it permits the chamber a discretion.
Advocate Kameel Premhid, for the EFF, on Tuesday advised the court docket this was not the unfettered discretion the president’s counsel claimed.
As a substitute, it was outlined by the mandate of the panel. Therefore the Nationwide Meeting can solely reject the report in the event that they imagine the panel is fallacious on there being a prima facie case in opposition to the president.
“All the opposite causes which are earlier than you, are incompetent,” he stated.
“On the preliminary stage of the investigation, all of the Nationwide Meeting is requested to do is to vote yay or nay, does prima facie proof exist.”
It was not open to the chamber to determine, as occurred right here, that the report was flawed as a result of the panel misconstrued its mandate and regarded proof that was out of bounds or any of the opposite causes the ANC caucus invoked to “garbage” the findings.
“Should you don’t constrain that discretion, you get the end result you could have right here,” Premhid stated.
“They selected the fallacious cause and the consequence is that the vote to vote down the panel’s report is an illegal final result.”
Permitting parliament to reject an antagonistic report for any cause it noticed match, inevitably meant that the parliamentary majority would transfer to guard the president and impeachable conduct would go unpunished.
Due to this fact, Premhid stated in his written submissions, until the court docket “intervenes to curtail partisan pursuits in favour of legality, historical past will repeat itself”, no matter the truth that an ANC majority made approach for a coalition after the Might elections.
“Whether or not the bulk is single-party dominated (pre-2024, by the ANC) or fashioned by a coalition (post-2024, the federal government of nationwide unity) is irrelevant.”
Ramaphosa and his authorized workforce have argued from the second the panel submitted its report that it had misinterpret its mandate as a result of the brink for continuing to an impeachment trial was ample proof, not merely prima facie proof, of a case to reply. The ANC adopted this reasoning in rejecting the report.
Premhid advised the court docket the excellence was not as outlined in regulation as they’d have it.
Ramaphosa’s counsel, Wim Trengove SC, maintained that the EFF’s case by no means rose above a rationality overview as a result of the constitutional foundation for its assault on the principles was obscure.
Part 57(1) gave the Nationwide Meeting management over its personal processes and part 89(1) plainly allowed it a discretion to find out tips on how to train its energy to take away the president, together with whether or not to proceed to a full impeachment investigation.
“Underneath the rule, because the EFF would have it, your entire course of can be past the management of the Nationwide Meeting till the ultimate vote is taken on the impeachment of the president.”
The implications can be startling, he submitted.
It might imply that parliament couldn’t contemplate whether or not there was any actual prospect of figuring out the president’s guilt, or whether or not it was smart or within the public curiosity to proceed to an impeachment inquiry.
Trengove stated the EFF by no means pinpointed the supply of the Structure, which dictates that the Nationwide Meeting should not have any say till an impeachment inquiry had run its course.
Its argument was inimical to part 89.
“It says that the Nationwide Meeting ‘could’ take away the president on the grounds of significant misconduct. It’s a discretionary energy.”
The issue for the EFF was that part 89 doesn’t oblige the Nationwide Meeting to take away the president, even when the inquiry established grounds for elimination.
And as soon as the Structure makes elimination discretionary, it authorises MPs to vote on the matter. In voting all choices are equally competent, Ramaphosa’s legal professional Peter Harris stated, and subsequently the EFF’s rationality grievance falls flat.
“There will be no foundation subsequently for contending that any of those choices is irrational.”
The EFF, in arguing for substitution, submitted that after prima facie proof was established, there was nothing additional to judge and an impeachment trial should observe.
Remitting the report back to the Nationwide Meeting can be a waste of time as a result of the ANC would once more contrive to reject it.
It faces the hurdle of the separation of powers, which judges repeatedly raised in inquiries to Premhid, together with reservations about his studying of the excellence between prima facie and ample proof.
Trengove, in his papers, stated the EFF didn’t start to make out a case for substitution, which required displaying that distinctive circumstances demanded that the court docket assume a accountability the structure entrusted to the legislature.
“It makes no effort to reconcile its assault with part 89(1) of the Structure, which makes it clear that the ability to take away the president is a discretionary energy vested within the Nationwide Meeting.”
It additionally missed the purpose, he stated, that the discretion afforded to the Nationwide Meeting shouldn’t be “a judicial discretion, however fairly a really large political discretion because the Nationwide Meeting is a political physique”.
“It’s clear to see from the supposed distinctive circumstances (which may by no means move muster) posited by the EFF … that the EFF shouldn’t be ready to simply accept the results of a democratic course of and that’s what it’s making an attempt to overturn.”
Harris stated the EFF’s grievance that the choice taken by the Nationwide Meeting was politically motivated was “naive”.
“It speaks for itself that such a controversial choice taken by the Nationwide Meeting will at all times be politically influenced.”
The ANC shouldn’t be the one get together that was motivated by political persuasion, Harris stated.
“All of them have been.”
Harris argued that the EFF had an additional issue in that it couldn’t, because it sought to do, mount its problem immediately below the structure.
The precept of subsidiarity dictates that on this case the query is whether or not the Nationwide Meeting acted inside the guidelines adopted by parliament to train its energy by way of part 89 of the structure to take away a sitting president for critical misconduct or constitutional breach.
“The insurmountable issue for the EFF is that it doesn’t contend that the choice is inconsistent with the Part 89 guidelines.”
Therefore, he stated, it mounted an assault on rule 129I.
However forcing an modification wouldn’t help the EFF, he stated, as a result of it couldn’t depend on a declaration of invalidity with retrospective impact to impugn a choice that was legitimate on the time and remained so till put aside.
The EFF initially approached the constitutional court docket in early 2023 for direct entry to problem the Nationwide Meeting’s choice. It was denied direct entry, simply as Ramaphosa was a couple of months earlier when he tried to problem the panel’s report.
Trengove stated the EFF’s political motive for turning to the apex court docket a yr later, with basically the identical case, emerged in a letter it despatched to the chief justice in March, asking for an early listening to.
The get together stated it, and the remainder of the nation, wished the matter “adjudicated earlier than the upcoming nationwide elections” and for there to be ample time for the Nationwide Meeting to implement the ruling.
“The EFF’s motive was, in different phrases, that this court docket ought to pace up its adjudication of the applying in order to make sure a debate earlier than the Nationwide Meeting on the President’s health for workplace on the eve of the nationwide elections,” Trengove stated.
“It’s clear that the EFF’s utility is pushed by its political agenda.”