Constitutional Court expected to make landmark Phala Phala ruling on Friday

The Constitutional Court is set to deliver judgment on Friday in a landmark constitutional challenge over whether parliament acted lawfully when it rejected a Section 89 panel report recommending an impeachment inquiry against President Cyril Ramaphosa over the controversial Phala Phala matter.

At the centre of the dispute is a report chaired by retired chief justice Sandile Ngcobo, which found that there was sufficient evidence to justify parliament considering whether to establish an impeachment inquiry. 

The panel’s findings relate to allegations concerning the alleged theft and handling of foreign currency at Ramaphosa’s Limpopo Phala Phala game farm.

The panel examined allegations that about $580 000 in foreign currency was concealed in a sofa on the farm and later stolen, as well as questions on whether proper procedures were followed.

The report did not make findings of guilt but concluded that the evidence was sufficient to warrant further scrutiny through an impeachment inquiry under Section 89 of the Constitution.

However, the National Assembly voted by 214 to 148 to reject the report, effectively preventing the impeachment process from proceeding to an inquiry stage.

The legal challenge has been brought by the Economic Freedom Fighters (EFF) and the African Transformation Movement (ATM). They argue that parliament acted irrationally and unconstitutionally in rejecting the panel’s findings.

They contend that Section 89 establishes an accountability mechanism requiring parliament to properly consider and act on the findings of an independent panel. They argue that the National Assembly cannot legally block the process without constitutionally valid reasons.

The EFF and ATM say parliament’s decision undermines the purpose of the impeachment framework by allowing political majorities to prevent accountability mechanisms from being triggered.

A key aspect of the case is Rule 129 of the National Assembly’s impeachment procedures, which was applied for the first time after being adopted in 2018. The rule provides that the National Assembly retains discretion to decide whether to proceed with impeachment after receiving a Section 89 panel report.

The EFF argues that the discretion is unconstitutional as it allows parliament to override the findings of an independent panel and frustrate the constitutional purpose of the impeachment process. 

The party has asked the court to declare the rule invalid and set aside parliament’s decision, arguing that the National Assembly should have proceeded to an impeachment inquiry.

During hearings, the Constitutional Court examined the legal threshold applied by the panel and parliament’s response to its findings. Questions were raised about whether the panel correctly interpreted its mandate and whether parliament properly exercised its discretion when voting to reject the report.

Justice Owen Rogers interrogated aspects of the president’s explanation, including the handling of the cash and its alleged origin from cattle sales. However, the court’s focus remained on the legality of parliament’s decision-making process rather than the factual merits of the allegations.

Parliament, represented by the National Assembly, maintains that it acted within its constitutional powers. It argues that the legislature retains discretion over how to respond to Section 89 panel reports and that courts should not interfere in internal parliamentary processes governed by political decision-making.

It says that accepting the applicants’ position would improperly shift political accountability from elected representatives to the judiciary, undermining the principle of separation of powers.

The ruling is expected to clarify the legal weight of Section 89 panel findings and the extent of parliament’s discretion in impeachment proceedings under the Constitution.

In a statement on Tuesday, the EFF said it waited for the judgment “with the expectation that the Constitutional Court ensures that the Section 89 report is properly returned to Parliament for lawful consideration and accountability processes”.