ANC MPs broke the law when they voted against holding President Cyril Ramaphosa accountable for failing to report the theft of millions of rand in undeclared foreign currency in his Phala Phala farm.
This is among the arguments made by the EFF at the Constitutional Court in the party’s bid to force the National Assembly (NA) to take action on the recommendations of the Section 89 (of the Constitution) independent panel chaired by retired Chief Justice Sandile Ngcobo.
In November 2022, the panel told Parliament that Ramaphosa had a prima facie case to answer for failing to report the theft of the undeclared US$580 000 (nearly R8.8 million at the time the money was stolen in February 2020) at his Limpopo farm.
However, in December 2022, the panel’s report came before the NA to debate whether to proceed with an inquiry that could ultimately lead to the establishment of an impeachment committee, but the proposal was voted down by a majority of 214 MPs to 149.
In its Constitutional Court application, the EFF wants the NA’s decision not to adopt and refer Justice Ngcobo’s panel report to an impeachment committee in December 2022 declared irrational.
The party has asked the country’s highest court to further and/or alternatively declare that the NA’s failure and decision infringes the Constitution and substitute the decision with one stating that the report was adopted or alternatively referring the matter back to the house to vote on the report de novo (afresh).
In addition, the EFF wants the NA’s presidential impeachment rules declared inconsistent with the Constitution as they allow MPs to vote against any possible impeachment proceedings in circumstances where a prima facie case has been made against a sitting president by the panel or on the basis that it is impermissibly vague.
Speaker Thoko Didiza, the EFF pleads, must be directed to amend the presidential impeachment rules to allow for a prima facie finding to be automatically referred to an impeachment committee so that a full investigation can take place or provide suitable guidelines as to how the NA’s discretion in terms of the rule is to be exercised.
The rules’ declaration of invalidity should be suspended for 12 months to allow the NA to effect the amendments.
The motion for Ramaphosa’s removal from office was brought by African Transformation Movement (ATM) leader Vuyo Zungula, whose party has asked to be joined as a co-applicant with the EFF in the matter.
In its court papers, the EFF said Parliament, through its decision, allowed Ramaphosa to remain as president.
“Had Parliament acted lawfully, and the impeachment process permitted to continue, he may not have been eligible to do so; having regard to the panel’s findings, he would be impeached. But given the impeachment process was preemptively terminated, he ran for re-election as an MP on the ANC’s list and later was re-elected president,” read the party’s written submissions.
According to the EFF, the decision has the ongoing legal effect of permitting someone who may be ineligible to occupy an office from which he may be disqualified and is also an ongoing wrong.
“The then ANC majority in the NA cannot contend that they acted rationally when the evidence shows they voted along party lines.
Whatever loyalty ANC MPs have to the president, the proper exercise of their decision-making power to consider the panel’s report is limited. It is about a prima facie case. Anything else would be unlawful,” the country’s fourth biggest political party said.
It further said that the ANC’s (and, by extension, the NA’s) reasons for voting against the adoption of the report were unlawful.
“ANC members were instructed to vote against the adoption of the report because the ANC had decided that was politically appropriate. The ANC concedes this. That is the true reason,” stated the EFF, describing this as not a legally cognisable answer.
The party also believes that the NA should not have the power to decide on whether impeachment proceedings should be instituted where the panel finds that the requirements to do so have been met.
According to the EFF, the ANC’s suggestion that because the term of the sixth Parliament (2019-2024) has lapsed, the decision cannot be referred to the seventh Parliament (2024-2029) is specious and unsupported, as well as that the majority party’s contention that the relief sought by the EFF is moot because a new NA was sworn in June this year lacks merit.
The EFF wants the apex court, as the ultimate guardian of the country’s constitutional democracy, to intervene and ensure that Ramaphosa is held accountable.
In response to the EFF’s application, Ramaphosa explained that the Constitutional Court has already decided the issue.
“The EFF’s first application, launched in January 2023, sought substantially the same relief as its current application. This court dismissed its application because it ‘has concluded that no case has been made out for direct access’ … The matter is res judicata (a matter already judged),” the president noted.
He said the Constitution does not confer any power on the apex court to act instead of the NA.
“There are no exceptional circumstances that can ever justify this or any other court stepping into the shoes of and acting instead of the NA,” Ramaphosa said.
The ANC accused the EFF of inferring from the vote’s outcome that the governing party must have imposed its will on its members who otherwise would have voted in line with the EFF’s wishes and that the panel’s report is not binding on the NA.
The governing party added that the panel’s report was riddled with legal and factual errors and clearly founded on conjecture and speculation as there were pending investigations, and its view was that it would be unconstitutional to proceed with the inquiry and was entitled to persuade its MPs to vote against the motion.
In addition, according to the ANC, it commissioned an independent legal opinion, which also stated that it would be inappropriate and premature for the NA to proceed with the impeachment process, given that there were so many pending and outstanding investigations.
The NA said the expiry of its 2019-2024 term of the sixth Parliament in May this year means an impeachment committee cannot validly conduct a Section 89 inquiry into Zungula’s motion.
It warned that should the EFF succeed, this would shift from the National Assembly to the panel, the power to decide whether a motion for the president’s impeachment should be referred to an impeachment committee, resulting in non-MPs (the panel) being conferred the power to direct a parliamentary committee to conduct a presidential impeachment trial or not to do so.
The NA cautioned against this as it is inconsistent with the principle of the separation of powers.
According to the ATM, the apex court has the power to protect minority parties in circumstances where the majority abuses its power by exercising it for an improper purpose.
“Although members of the NA are selected from the political parties they represent, once they have taken the oath in terms of Section 48 of the Constitution, they owe their loyalty to the Constitution and not their political parties,” the party said.
The ATM stated that the NA failed to act with an open and enquiring mind and give adequate consideration to the panel’s report and its findings that Ramaphosa had a prima facie case to answer but instead acted as the ANC’s rubberstamp in the face of its constitutional obligation to hold him to account.
“The circumstances of this case, mindful of the doctrine of separation of powers, require this court to interfere and intervene in instances where the NA, by majority vote, abuses its majority power and acts unconstitutionally,” state the party’s written submissions.
The matter will be heard on Tuesday, the same day three suspects – Imanuwela David, siblings Ndilinasho and Froliana Joseph, who was a housekeeper at Phala Phala – are expected back at the Modimolle Regional Court for a pre-trial conference for charges of conspiracy to commit housebreaking with intent to steal, housebreaking with intent to steal, and money laundering.