Photo: Economic Freedom Fighters.
The Constitutional Court (ConCourt) will today hear an application by the Economic Freedom Fighters (EFF) and the African Transformation Movement (ATM) seeking to declare the National Assembly’s (NA) decision not to adopt the Independent Panel’s report regarding the Phala Phala scandal and not to refer it to the Impeachment Committee as irrational and unlawful for violating certain constitutional provisions.
On 30 November 2022, the independent panel appointed by then-NA speaker Nosiviwe Mapisa-Nqakula found that there is “prima facie” evidence that President Cyril Ramaphosa may have violated sections 96(2)(a) of the constitution and 34(1) of PRECCA, with the aim of keeping the investigation of the burglary at his farm in Limpopo private.
The panel, led by former chief justice Sandile Ngcobo, was tasked with investigating whether the president committed an impeachable offence related to the burglary at his Phala Phala game farm in Limpopo in February 2020.
“The President abused his position as Head of State to have the matter investigated and seeking the assistance of the Namibian President to apprehend a suspect,” reads the report.
READ MORE: Independent panel finds Ramaphosa has a case to answer on Phala Phala
The panel also found that there was more foreign currency concealed in the sofa than the amount reflected in the acknowledgement of receipt.
In response, Ramaphosa denied any wrongdoing on his side.
On 13 December 2022, the NA voted on whether to adopt the Phala Phala report, and the majority of members voted against it.
214 MPs voted ‘no’, while 148 votes for ‘yes’, with two abstentions.
The Public Protector, the South African Revenue Service (Sars) and the South African Reserve Bank (SARB) have all cleared Ramaphosa of any wrongdoing in the matter.
Last month, the National Prosecuting Authority (NPA) decided not to pursue prosecution against him.
Today, the EFF and ATM, as the first and second applicants in the case, will take on the Speaker of the National Assembly, the National Assembly, the President of South Africa, the African National Congress and all the other political parties represented in the National Assembly in a bid to overturn the NA vote.
The EFF argues that the NA failed to carry out its constitutional obligation to hold Ramaphosa accountable in terms of section 89 of the Constitution.
In addition, the EFF seeks a declaratory order that Rule 129l of the Rules of the National Assembly is invalid and inconsistent with the constitution.
Rule 129l empowers the Speaker to schedule the report for consideration by the NA with urgency, leaving the decision on whether a Section 89(1) impeachment process should proceed to the NA.
The EFF contends that this rule allows the majority party to override reports implicating its members, as was the case with Ramaphosa.
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Should the ConCourt find the NA’s vote unconstitutional, the EFF wants the court to appoint an Impeachment Committee in its place.
The EFF argues that the application engages the ConCourt’s exclusive jurisdiction because it concerns the NA’s failure to fulfill its constitutional duty to hold the president accountable.
During a media briefing on Monday, EFF leader Julius Malema said his party would march to the ConCourt in support of its case.
“We told you Phala Phala will never die for as long as the EFF is in parliament, which we are. We argue that the panel’s report, parliament can’t go against it without any rational reason. Parliament has no reason why it went against the panel report,” said Malema.
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However, not everyone is welcome to the march.
“We’re marching to the Constitutional Court with everyone except the MKP. The MKP can’t be part of our march. If they want to march, they can go and organise their own.”
The ATM said the failure of the NA to adopt the independent panel’s findings was a direct violation of its duty to hold the executive accountable.
“This neglect of responsibility is not only unconstitutional, but it also undermines the democratic values upon which our country is built,” said the party.
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“Moreover, we contend that the decision by the majority in Parliament to disregard the findings of the panel was an abuse of majority power. The decision was not only unconstitutional but oppressive, as it used the power of the majority to shield those in power from accountability.
“We also argue that the Constitutional Court has a vital role to play in protecting minority parties when the majority abuses its power.
“As we prepare to appear before the highest court in the land, we remain steadfast in our commitment to holding those in power accountable.”
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