By Lehlohonolo Lehana.
President Cyril Ramaphosa’s application to legally challenge the Section 89 panel report on Phala Phala won’t affect National Assembly from proceeding with a possible impeachment process.
In a letter to National Assembly (NA) Speaker Nosiviwe Mapisa-Nqakula, the institution’s legal advisor, Zuraya Adhikarie, said Ramaphosa’s pending application did implicate the sub judice rule.
“This creates a practical challenge of managing the debate. 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,” Adhikarie said.
Adhikarie said it was, however, permissible for the NA to consider the fact that the president had launched a review application in determining its way forward.
“Therefore, in light of the above, we advise that the launch of the president’s review application, unless an interdict was 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,” Adhikarie said.
Furthermore, Adhikarie said the sub judice rule in NA rule 89 did not preclude it (the National Assembly) from considering the matter.
“It precludes the National Assembly from reflecting on the merits. This is to prevent the National Assembly from influencing or affecting the outcome of the matter that is already pending before the court. However, the current matter is distinguishable, as it was initiated in terms of the NA rules and was serving before it when the president launched his review application. It is, therefore, our view that NA rule 89 does not bar the National Assembly from proceeding,” she said.
Adhikarie said the independence of the courts and their function to adjudicate matters was of paramount importance.
“However, the application of the sub judice rule in the parliamentary context requires a balancing of the constitutional directive to respect the independence of the courts and the necessity to ensure that Parliament does not relinquish its own constitutionally mandated responsibilities. Deference to the courts cannot result in an absolute bar on Parliament from dealing with matters solely because it is pending adjudication,” she said.
The panel headed by Sandile Ngcobo, a former chief justice, issued a scathing assessment of Ramaphosa’s handling of the theft of at least $580,000 that had been stuffed into a sofa at his game farm, and recommended that lawmakers consider censuring him.
The National Assembly will decide on December 13 whether to adopt the report and set up its own inquiry, a vote that needs a simple majority to pass.
The Democratic Alliance, Economic Freedom Fighters, Inkatha Freedom Party and Freedom Front Plus, which together control 152 of the 400 seats in the legislature, on Thursday all said they will vote in favor of approving the panel’s findings. The ANC has instructed its 230 legislators to block the report, but not all of them support Ramaphosa and some could vote alongside the opposition. An open ballot will, however, serve as a deterrent to those considering breaking ranks.