Proceed or pause? National Assembly’s legal quandary over Phala Phala Report

President Cyril Ramaphosa’s application to the Constitutional Court (ConCourt) to review and set aside the Section 89 Independent Panel Report on Phala Phala has put Parliament in a legal quandary over the validity of the Sub Judice Rule in the matter.

National Assembly (NA) Speaker, Nosiviwe Mapisa-Nqakula had been advised of her choices – to proceed with the parliamentary process towards impeaching Ramaphosa, or to shelve the matter until the president’s constitutional application for the Phala Phala panel report to be set aside was finalised.

Nothing precludes the Assembly from going ahead with the matter, unless an interdict was obtained by the president to stop it from doing so and the NA has to use its discretion.

Also Read: Phala Phala vote: Result predictable

ConCourt application throws a spanner in the works

Ramaphosa approached the Constitutional Court this week, requesting it to set aside the report which found he had a case to answer over the cash robbery that occurred at his farm in 2020.

At the same time the National Assembly is also expected to consider the report and vote on whether to impeach the president after the panel, chaired by retired chief justice Sandile Ngcobo, was appointed by Parliament to investigate the president’s role in the theft of over half-a-million in US dollars from his game farm, Phala Phala in Limpopo in 2020.

The panel found the president has a case to answer on the matter, but Ramaphosa denied any wrongdoing and decided to take the matter to the ConCourt for judicial review and setting nullification of the report.

Parliament, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the president from office only on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office.

As the NA would sit on 13 December to consider the report and decide on whether or not to impeach the president, Mapisa-Nqakula sought legal opinion on the application of the Sub Judice Rule in light of Ramaphosa’s legal challenge against the panel report.

This would enable NA to decide on how to proceed with the matter without breaching the Sub Judice Rule.

Also Read: Ramaphosa’s fight back could pick apart Phala Phala panel’s ‘irrational’ errors

Would proceeding interfere with the ConCourt action?

The dilemma now is how to proceed with the NA process without risking encroaching on the merits of the matter before the ConCourt, or causing prejudice to the administration of justice.

At the same time, there is also the constitutional requirement for Parliament to hold the executive accountable, including the process to remove the president, if necessary, as provided in the Constitution.

In her written advice, Parliament’s chief legal advisor, Advocate Zuraya Adhikarie, noted that the panel report had concluded that the president, prima facie, may have committed various serious violations of the Constitution and the law, while the president’s review application sought to set aside the report.

She said the NA would be deciding whether or not to adopt the findings and recommendations of the report and to proceed with the next step of the Section 89 process.

“The decision that the National Assembly is required to make will be the very subject of the review application. If the National Assembly proceeds with considering the report, it may be difficult for members to consider the matter and not to ‘reflect upon the merits’ of the review application,” she said.

Adhikarie concluded that Ramaphosa’s ConCourt application did implicate the Sub Judice Rule and that created a practical challenge of managing the (parliamentary) debate on (Tuesday).

“However, this cannot be an absolute bar to the National Assembly deciding whether to proceed with a Section 89 Inquiry and whether or not to refer the matter to an Impeachment Committee. However, it is permissible for the National Assembly to consider the fact that the president has launched a review application in determining its way forward,” she said.

If the president wanted to formally restrain the NA from proceeding, he would need to obtain an interim interdict to this effect.

According to Adhikarie it would be rational for the NA to use its discretion if so wished to resolve to proceed with the Section 89 process or not to proceed with it. It could also decide that the matter should be deferred until the pending ConCourt application (by Ramaphosa) had been determined.

“Therefore, in light of the above we advise that the launch of the president’s review application, unless an interdict were obtained, would not preclude the National Assembly from considering whether to proceed with a Section 89 Inquiry and refer the matter to an Impeachment Committee.”

During its National Executive Committee meeting on Monday, the governing ANC decided to reject the panel report – which meant it would vote against it. But some ANC MPs, especially from the radical economic transformation faction such as Supra Mahumapelo, voiced their intention to defy the party’s decision and vote for Ramaphosa to be impeached.

Parliament has to achieve a two-thirds majority vote in favour if it is to remove the president.

ANC MPs who acted against the party’s caucus decision risked being disciplined, which involved first suspension before a final censure was determined.