The Economic Freedom Fighters (EFF)'s real complaint in its attack on the Constitutional Court against Parliament's decision not to impeach President Cyril Ramaphosa over the Phala Phala controversy is that the democratic process did not yield the desired result. said the president's lawyers. (Darren Stewart/Gallo Images via Getty Images)
The Economic Freedom Fighters (EFF)'s real complaint in its attack on the Constitutional Court against Parliament's decision not to impeach President Cyril Ramaphosa over the Phala Phala controversy is that the democratic process did not yield the desired result. said the president's lawyers.
The EFF launched its application to the Supreme Court in February, which is the second time it has addressed Parliament's rejection of the recommendations of the Ngcobo report.
The Ngcobo Commission, chaired by former Chief Justice Sandile Ngcobo, has accused the President of ostensibly committing serious misconduct in relation to the source of foreign exchange stolen from a hunting farm in Limpopo and subsequent clandestine efforts. It was determined that it was necessary to answer the following questions. I'll get my money back.
The commission's report reflected Ramaphosa's darkest political period and brought him to the brink of resignation, but it was rejected by Parliament by 214 votes to 148 on 13 December 2022.
As for parliamentary rules, that was the end of the matter, and less than a week later, Mr Ramaphosa was elected to a second term as ANC president.
The EFF is asking the court to not only overturn the parliamentary vote, but instead decide to launch an impeachment inquiry.
This decision was unreasonable as the facts did not allow for a stay of execution, and granting a stay of execution to Mr. Ramaphosa would violate Parliament's duty to hold the president accountable through impeachment under Article 11 of the Constitution, particularly Article 89. Alleges that there was a violation.
The party also attacks the rules written to allow Article 89 to apply, arguing it could be open to political abuse by the majority. The case will be the first test of the rule in the Supreme Court. The EFF is calling for Rule 129I to be declared unconstitutional and Congress to be given 12 months to amend it.
The rules stipulate that if the National Assembly votes to proceed with the investigation, it must consider the panel's report and refer the matter to the impeachment committee. In other words, this gives the House discretionary power.
EFF lawyer Kamel Premhid told the court on Tuesday that this was not the unfettered discretion claimed by the president's lawyers.
Instead, it was defined by the panel's authority. Therefore, Congress can reject the report only if it believes the panel is wrong in finding that there is a prima facie case against the president.
“All other reasons in front of you are incompetence,” he said.
“At this preliminary stage of the investigation, all that is required of Parliament is to vote in favor of whether a prima facie case exists.”
Either because the commission misunderstood its mandate and considered evidence that was outside its scope, as happened here, or for any of the other reasons the ANC parliamentary caucus brought forward to “rubbish” the findings, the report It was not open to the Chamber to determine that the book was defective.
“If you don't limit that discretion, you're going to get the results you get here,” Premhid said.
“They chose the wrong reason, and as a result, their vote to reject the panel report was an illegal outcome.”
The ability of Congress to reject adverse reports for any reason it sees fit necessarily means that the majority in Congress will move to protect the president and impeachable conduct will go unpunished.
Therefore, in his submission, Mr Premhid said that regardless of the fact that the ANC majority gave way to a coalition government after the May elections, the court would not be able to “intervene to suppress partisan interests in favor of legality”. Unless we do so, history will repeat itself.”
“Whether the majority is controlled by a single party (before 2024, by the ANC) or formed by a coalition (after 2024, a government of national unity) is irrelevant.”
Mr. Ramaphosa and his lawyers argued that from the moment the panel submitted its report, the panel misread its mandate because the standard for proceeding to an impeachment trial is sufficient evidence, not just a prima facie case to answer. I've been insisting. The ANC adopted this argument and rejected the report.
Premhid told the court that this distinction was not as provided by law.
Mr Ramaphosa's lawyer, Wim Trengove SC, argued that the EFF's case could not go beyond a reasonableness review because the constitutional basis for the attack on the regulations was unclear.
Article 57(1) gives the National Assembly control over its own process, and Article 89(1) governs how it will exercise its power to remove the president from office, including whether to proceed with a full impeachment inquiry. clearly recognized the discretion to decide.
“Under these rules, as the EFF believes, the entire process would be beyond the control of Congress until a final vote on impeaching the president is taken.”
The impact would be surprising, he agreed.
That would mean Congress could not consider whether there was a realistic prospect of convicting the president or whether it was prudent or in the public interest to proceed with an impeachment inquiry.
Mr Trengove said the EFF never identified a clause in the constitution that says Parliament must not speak until the impeachment inquiry is complete.
That argument was hostile to Article 89.
The Diet says it is “possible'' that the president will be removed from office due to serious misconduct. It's a discretionary power. ”
The difficulty for the EFF was that Article 89 does not require Parliament to remove the president, even if an investigation establishes grounds for such removal.
And when the Constitution makes removal a discretionary power, it gives members of Congress the power to vote on the issue. Mr Ramaphosa's lawyer Peter Harris said all options were equally eligible on the ballot and therefore the EFF's claims of rationality were beside the point.
“Therefore, there is no basis for arguing that any of these options are irrational.”
In arguing for substitution, the EFF submitted that once a prima facie case is established, there is no further evaluation and an impeachment trial must take place.
It would be a waste of time to submit this report to Parliament as the ANC will once again try to reject it.
The issue faces separation of powers hurdles, which the justices have repeatedly raised in their questioning of Premhid, and have expressed reservations about Premhid's interpretation of the distinction between prima facie and sufficient evidence. are.
Mr Trengove said in the document that the EFF has not begun to bring an alternative case, which would require a showing of exceptional circumstances to require the court to shoulder the responsibilities that the Constitution entrusts to the legislature.
“No effort has been made to reconcile this attack with Article 89, Paragraph 1 of the Constitution, which clearly states that the power to dismiss the president is a discretionary power vested in the National Assembly.”
He also said that the point that the discretionary power given to the Diet is “not judicial discretion, but very broad political discretion because the Diet is a political organ” is also off the mark.
“If you look at the supposed exceptional circumstances that the EFF has put forward (that can never pass a rally), it is clear that the EFF is not ready to accept the outcome of the democratic process and is trying to overturn it. ”
Mr Harris said the EFF's complaints that Parliament's decision was politically motivated were “naive”.
“Controversial decisions like this by Congress are always politically influenced.”
Mr Harris said the ANC was not the only party motivated by political persuasion.
“Everyone was like that.”
Mr Harris argued that the EFF had tried to raise a direct constitutional challenge, but faced further difficulties in being unable to do so.
According to the principle of subsidiarity, the question in this case is that within the scope of the rules adopted by the National Assembly to exercise its power under Article 89 of the Constitution to remove a sitting president for gross misconduct or violation of the Constitution. It depends on whether you took action or not.
“The insurmountable difficulty for the EFF is that it does not claim that this decision is inconsistent with the Article 89 regulations.”
Therefore, he said, he launched an attack under Rule 129I.
However, forcing amendments will not help the EFF, as the EFF relies on a declaration of invalidity, which has retrospective effect, to appeal a decision that was valid at the time and remained valid until set aside. This is because it is not possible, he said.
The EFF initially approached the Constitutional Court for direct access to challenge the parliament's decision in early 2023. Just as when Mr Ramaphosa tried to challenge the commission's report several months ago, he was denied direct access.
Mr Trengove said the political motivations for the EFF to take essentially the same case to the Supreme Court a year later were revealed in a letter it sent to the chief justice in March asking for an early hearing.
The party said it hoped it and others around the country would “adjudicate the issue before the upcoming national elections” to allow enough time for parliament to implement the ruling.
“The EFF's motivation was, in other words, that this court should expedite its decision on the application in order to ensure a parliamentary debate on the suitability of the president on the eve of a national election,” Trengove said. Ta.
“It is clear that EFF’s application is driven by its political objectives.”
