President Cyril Ramaphosa has won a court order pausing his impeachment proceedings pending a September review of the independent panel’s report. But the victory is narrower than it appears, constitutional experts say.
President Cyril Ramaphosa has successfully won an interim interdict to stop the impeachment committee from continuing most of its work, temporarily at least.
In a short delivery of the judgment on Friday, Judge Andre le Grange of the Western Cape High Court said that Parliament and the impeachment committee “are interdicted from proceeding with public impeachment hearings in terms of Rule 129M of the National Assembly rules”.
“The judgment has not stopped accountability, and nor has it cleared Ramaphosa from any wrongdoing,” Dr Shadi Maganoe, senior lecturer at Wits University’s Law School, says.
She adds that this interdict was about timing.
“What the court is saying is that it’s preferable to determine whether that panel report is even sound before Parliament proceeds with the next stage of this impeachment process.”
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The panel report, commissioned by Parliament, is a Section 89 independent report which found that Ramaphosa has a prima facie case to answer for in relation to the Phala Phala saga.
Ramaphosa has taken it under review and is seeking to strike down the report. That case is expected to be heard between 2-4 September in the Western Cape High Court.
This report is the basis upon which the impeachment committee was established.
Limited interdict
Essentially, the work that Parliament’s impeachment committee has done up to this point, in terms of public hearings, is “paused” until judgment is delivered on Ramaphosa’s review of the independent report.
Advocate Lufuno Nevondwe, a constitutional law expert at the University of Limpopo, adds that “the committee is legally barred from moving forward with substantive impeachment hearings until the review process concludes”.
The interdict is also limited to Rule 129M, which deals with the functions and powers of the impeachment committee. The core is the public hearings.
Maganoe adds that the order “has not, on the face of the order, suspended Parliament as an institution or prohibited every preparatory step the committee might undertake”.
Nevondwe says “preparatory work can continue behind the scenes”, but that the impeachment committee is legally barred from hearings until the review process concludes.
Separation of powers affirmed
The respondents, Parliament and the impeachment committee, can appeal, Nevondwe says, “but what value would there be in that?”
Because this is an interim interdict, which expires when the review judgment is delivered (possibly in September), “it would be a waste of taxpayers’ money”.
Maganoe adds that because the political and legal stakes are high, the respondents could push for an urgent appeal. “From a constitutional perspective, sometimes patience is key.”
The judgment for the interim interdict was not unanimous. There were three judgments, with one dissenting, and two in favour of the president.
Judge Mathew Francis, who penned the dissenting judgment, stated that Ramaphosa did not satisfy the requirements for an interim interdict and disagreed with the majority judgment.
Maganoe says that because there are two constitutional principles competing – Parliament’s constitutional duty to hold the president accountable, and the president’s right to challenge the legality of the panel report – the 2-1 split is significant.
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It shows the court was careful and aware of the separation of powers doctrine – between Parliament, the executive and the judiciary – she adds.
“There was a balance that had to be laid, and the court had to determine where to strike that balance.”
The dissenting judgment and the limited interdict order speak to this delicate balance. Especially, “that courts must be cautious not to interfere with Parliament’s constitutional oversight duty”.
Attention will now turn to the review application and what the impeachment committee will decide regarding its next legal steps.
