By Lehlohonolo Lehana.
The majority of members of the Section 89 Impeachment Committee voted in favour of to oppose the Economic Freedom Fighters (EFF) and the African Legal Professionals Association (ALPA) court application to set aside Adv Griffiths Madonsela SC’s non-appointment as evidence leader.
The committee had initially picked Madonsela, but backtracked after President Cyril Ramaphosa raised concerns over potential conflicts of interest, citing a past removal from a Judicial Service Commission appointee role and remarks regarding the Phala Phala theft.
Both the EFF and ALPA argue that the U-turn by the committee was unlawful, claiming Madonsela is not a decision-maker in the process and that the committee misconstrued the law.
The EFF asked the Western Cape High Court to hear the urgent matter.
In discussions before the vote, EFF MP Omphile Maotwe argued that the impeachment committee had taken a decision to recommend Madonsela, which was rescinded without new facts, but an objection from the executive. That put Parliament’s powers and decision-making at risk.
“When we change the decision… we are no longer a legislature; we are simply an extension of the Presidency,” she said.
ATM MP Vuyolwethu Zungula said taking decisions by majority in a committee did not protect it against irrationality – and reminded GNU coalition partners of their past objection to the ANC using its parliamentary majority.
“Now it is the GNU parties that are hell-bent on protecting a person who should be subject to an inquiry…”
DA parliamentary leader George Michalakis agreed to oppose the applications due to the potential broader impact on Parliament, given that the rules allowed committees to change their decisions.
“(A) judgment in favour of the applications would have serious impact on the powers of Parliament and committees… That will have a repercussion for parliamentary committees across the board.”
The vote in support of opposing the EFF and ALPA litigation effectively ended any discussion of choosing another evidence leader.
The Committee chair Makashule Gana said, “We resolved to oppose the court challenges of the EFF and ALPA.”
“On behalf of the committee, I will ensure that the papers and all notices relating to opposing these two applications are submitted to court,” he told MPs on Wednesday.
“We have deferred the appointment of Evidence leader until outcome of court challenges, said Gana.”
Parliament’s senior legal adviser, SuAnne Isaacs, said the committee is not legally barred from continuing its search for an evidence leader.
“If they are successful in their application, a subsequent appointment decision will also be set aside,” Isaacs said.
She said the committee nevertheless remains within its rights to appoint an evidence leader to begin preparatory work, provided it acts in accordance with any court order.
Gana meanwhile added that the Terms of reference are nearing finalisation for the process to hold Ramaphosa accountable over his handling of the theft of foreign currency at his private Phala Phala farm.