Parliament’s legal advisers have left the Section 89 Impeachment Committee two options.
They can reaffirm Advocate Thandazani Griffiths Madonsela SC as its recommended chief evidence leader after considering new information about his past legal work for the African National Congress (ANC) or withdraw the recommendation and restart the appointment process.
The advice follows President Cyril Ramaphosa’s objection to Madonsela’s appointment and the subsequent disclosure that the senior advocate had previously advised the ANC on legal issues linked to parliamentary impeachment processes.
READ: Ramaphosa moves to block Madonsela as impeachment evidence leader
In a legal opinion dated August 26, senior parliamentary legal advisers Sueanne Isaac and Michael Prince said the committee had not been presented with the full extent of this information when it originally voted for Madonsela.
“The committee may therefore confirm its recommendation of Advocate Madonsela after considering the new information and recording its reasons for concluding that no real or perceived conflict of interest exists or determine that the newly disclosed information is sufficiently significant to create a perception of conflict that warrants rescinding the recommendation and reconsidering the appointment of a Chief evidence leader,” according to the opinion.
The committee originally selected Madonsela on August 5 after considering him alongside Advocate Kate Hofmeyr SC. Then the ANC chose to abstain from voting on the matter.
The committee then resolved to recommend Madonsela and proceeded with the administrative steps required for his appointment.
At that stage, the legal advisers said, there had been no objection from any political party to the recommendation.
At the time, Madonsela had already disclosed that he had previously been involved in giving legal advice to the ANC, relating to impeachment processes. Madonsela maintained that his involvement had been limited and that he did not have access to the factual information forming the basis of the current Section 89 inquiry.
The ANC later confirmed this to the Speaker Thoko Didiza that Madonsela had previously provided the party with legal advice.
The party made it clear that the disclosure was not intended as an objection to Madonsela’s appointment and did not cast doubt on his integrity or independence. Instead, it wanted the information formally placed before Parliament before the appointment was finalised.
However, the opinion does not conclude that Madonsela has an actual conflict of interest.
“In our view, the information currently available does not establish that Adv Madonsela has an actual conflict of interest which would automatically disqualify him from serving as Chief Evidence Leader. Similarly, there is insufficient objective evidence to support reasonable apprehension that his previous service as a presidential appointee to the Judicial Service Commission would impair his independence or impartiality,” according to the opinion.
The advisers warned that the committee could not ignore the issue because its own framework requires the evidence leader to be free from both an actual and perceived conflict.
They said this safeguard exists “to maintain public confidence in the integrity and fairness of the proceedings.”
Ramaphosa had also raised concerns about Madonsela’s previous relationship with the presidency.
The President’s objection included concerns about Madonsela’s removal as a presidential nominee to the Judicial Service Commission and whether this could have created resentment towards him.
READ: Madonsela calls foul on Ramaphosa’s JSC ‘grudge’ claim
The legal advisers found no evidence of personal hostility between Ramaphosa and Madonsela and said there was no objective basis for concluding that Madonsela would approach the impeachment inquiry with bias because of the JSC matter.
They further found that Madonsela’s former position as a presidential nominee to the JSC did not, on its own, create an actual conflict or justify an apprehension of bias.
The advisers said the evidence leader “does not determine the facts, make findings, vote on recommendations, or decide the outcome of the enquiry.”
Instead, the role is to assist the committee in dealing with the evidence by identifying, organising and presenting relevant material. The ultimate responsibility for assessing the evidence and reaching conclusions remains with the committee.
- Parliament’s legal advisers advised the Section 89 Impeachment Committee to either reaffirm or withdraw Advocate Thandazani Griffiths Madonsela SC’s appointment as chief evidence leader after new information about his past legal work for the ANC was revealed.
- President Cyril Ramaphosa objected to Madonsela’s appointment following disclosure that Madonsela had previously advised the ANC on legal issues related to parliamentary impeachment processes.
- The legal opinion stated there is no evidence of an actual conflict of interest or bias from Madonsela’s prior roles, including his previous service as a presidential nominee to the Judicial Service Commission.
- The advisers noted a perceived conflict of interest could affect public confidence, so the committee must consider whether to maintain or rescind Madonsela’s appointment based on the newly disclosed information.
- Madonsela’s role as chief evidence leader is to assist in managing evidence, with the committee retaining ultimate responsibility for assessing evidence and deciding on outcomes.
Parliament’s legal advisers have left the Section 89 Impeachment Committee two options.
READ: Ramaphosa moves to block Madonsela as impeachment evidence leader
In a legal opinion dated August 26, senior parliamentary legal advisers Sueanne Isaac and Michael Prince said the committee had not been presented with the full extent of this information when it originally voted for Madonsela.
"
At that stage, the legal advisers said, there had been no objection from any political party to the recommendation.
At the time, Madonsela had already disclosed that he had previously been involved in giving legal advice to the ANC, relating to impeachment processes. Madonsela maintained that his involvement had been limited and that he did not have access to the factual information forming the basis of the current Section 89 inquiry.
However, the opinion does not conclude that Madonsela has an actual conflict of interest.
"In our view, the information currently available does not establish that Adv Madonsela has an actual conflict of interest which would automatically disqualify him from serving as Chief Evidence Leader. Similarly, there is insufficient objective evidence to support reasonable apprehension that his previous service as a presidential appointee to the Judicial Service Commission would impair his independence or impartiality," according to the opinion.
Ramaphosa had also raised concerns about Madonsela’s previous relationship with the presidency.
READ: Madonsela calls foul on Ramaphosa's JSC ‘grudge’ claim
Instead, the role is to assist the committee in dealing with the evidence by identifying, organising and presenting relevant material.
