Setumo Stone | How Zuma, Mkhwebane could have benefitted from Phala Phala principles

The Western Cape High Court’s majority judgment on Friday granting President Cyril Ramaphosa an interim interdict to halt Parliament’s impeachment proceedings has established a legal formula that, applied retrospectively, could have offered both former president Jacob Zuma and former public protector Busisiwe Mkhwebane a path to relief they were denied.

The principles articulated by Judges Diane Davis and André le Grange require the successful applicant to separate the formal command already obeyed from a later, irreversible step that can briefly be restrained without dismantling the original order or constitutional process.

The formula is to preserve the order, preserve the institution, narrow the restraint, fix its expiry date, and identify harm that a later judgment cannot reverse.

Applied retrospectively, Zuma and Mkhwebane would have needed to argue very different cases.

What Zuma would have needed to argue

Zuma asked the KwaZulu-Natal High Court to stay the Constitutional Court orders requiring him to serve his 15-month sentence pending rescission. The High Court treated that as direct interference with an apex court order.

Under the Phala Phala method, Zuma would have had to abandon any prayer suspending the Constitutional Court order. He would instead have surrendered to police, accepting the order’s authority. His application would then have targeted only the next step: immediate transfer to a correctional facility.

The reframed argument: “I have obeyed the command to surrender. I do not seek release. I ask only that police delay my delivery to a correctional centre until the rescission application is determined.”

That would have imported four features from Ramaphosa’s success. First, the original order would remain alive. Second, the restraint would be tightly confined, a temporary prohibition on transfer, not suspension of the sentence. Third, the expiry date would be imminent, the rescission application was heard on July 12. Fourth, he could have characterised incarceration as irreparable harm: days served could not be returned.

Zuma could also have asked the court to treat his rescission grounds as a “serious question to be tried” rather than deciding their likelihood of success.

Why Zuma would probably still lose

The Constitutional Court order leaves little room. It ordered Zuma to surrender within five days so police could ensure he was “immediately delivered to a correctional centre to commence serving the sentence”. The transfer was expressly commanded. The Phala Phala majority relied on the absence of such a prescription: the Constitutional Court referred the report but did not fix when hearings had to begin. Zuma lacked the gap on which Ramaphosa’s interdict depends.

What Mkhwebane would have needed to argue

Mkhwebane had more room to deploy the formula because the Section 194 removal mechanism, like Section 89 impeachment, proceeded through stages. Her applications sought to restrain Parliament from continuing the removal process. The courts found she failed to establish irreparable harm and that Parliament’s accountability function carried greater weight.

To succeed, Mkhwebane would have needed to narrow her prayer to the public evidential stage. She would have had to concede the committee could remain constituted, Parliament could continue preparatory work, and the removal mechanism would remain operative. Her order would then prohibit only public hearings until an expedited review.

The framing: “Parliament may prepare, but it should not publicly ventilate allegations under a process whose legality is already before court. Once broadcast, a later judgment cannot remove evidence from public memory.”

That is substantially the harm the Ramaphosa majority accepted. Davis treated public exposure to an allegedly unlawful inquiry as injury occurring through the process itself. The committee’s continued existence reduced the institutional cost. Mkhwebane would also have needed an imminent hearing date and an order expiring automatically when judgment was delivered, not an open-ended stay.

Her prima facie-right argument could have been confined to the strongest defect: limitation on participation by her legal representative.

That ground was later vindicated, the Constitutional Court declared irrational the proviso that a legal practitioner could not participate in the committee. She could have argued that at least one part of the process faced a sustainable constitutional challenge.

The uncomfortable comparison

Applying the Phala Phala principles consistently, Mkhwebane’s case was closer to Ramaphosa’s than Zuma’s. Zuma asked a lower court to stop the precise act commanded by the Constitutional Court: immediate delivery to prison. There was no meaningful downstream step to separate.

Mkhwebane, like Ramaphosa, faced a staged parliamentary inquiry. The committee could remain alive while public hearings were postponed. Both could claim public ventilation would inflict harm whose later judgment could not reverse. Mkhwebane also ultimately succeeded on a constitutional defect concerning legal representation. Ramaphosa has established only that his interpretation of “sufficient evidence” raises a question for review.

The distinction rests on factual tailoring: Ramaphosa sought relief confined to public hearings, his review already had a September date, the interdict expires when that review is determined, and the majority placed additional weight on harm to the Presidency. Those considerations explain why his case crossed the balance. They do not establish a categorical legal difference between a section 89 inquiry and Mkhwebane’s section 194 proceedings.

In comparison, Zuma could not easily use the Phala Phala principle because the Constitutional Court expressly prescribed the act he wanted stopped. Mkhwebane could have used it more plausibly by preserving Parliament’s machinery, restraining only public hearings and tying the order to an imminent review.

That makes Mkhwebane, rather than Zuma, the harder precedent for the majority judgment to distinguish.

​Subscribe To Our Newsletter 

Setumo Stone