Makashule Gana challenges court’s jurisdiction in impeachment evidence leader row

Chairperson of Parliament’s Section 89 Impeachment Committee Makashule Gana has asked the court to dismiss legal challenges to the committee’s decision to withdraw advocate Thandazani Griffiths Madonsela SC as its recommended chief evidence leader.

Gana argues that the dispute concerns Parliament’s constitutional authority and an appointment that had not been finalised.

In an affidavit opposing applications by the Economic Freedom Fighters (EFF) and the African Legal Professionals Association (ALPA), Gana maintains that the committee could reconsider its choice before Madonsela’s appointment was formally concluded.

“As explained above, the committee did no more on 5 August 2026 than identify and recommend a preferred candidate. The directive required further steps. Neither was Adv Madonsela SC’s brief confirmed by Parliament,” it reads.

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Jurisdictional objections and legal standing

He says several administrative and authorisation steps, including the conclusion of a written agreement, remained outstanding when the committee reversed its decision earlier this month. On this basis, he argues that the recommendation had not conferred a legal entitlement to the position.

Gana also questions whether the court has jurisdiction to entertain the challenge, given that it concerns Parliament’s exercise of its constitutional responsibilities in conducting the impeachment inquiry.

“I have explained under the jurisdiction objection that a complaint that the Assembly is failing to perform its constitutional obligations diligently and without delay is one that only the Constitutional Court may decide, and what follows is said on the assumption that this Court entertains the complaint. The chronology that is before this court does not establish undue delay.”

He also challenges the applicants’ reliance on the Promotion of Administrative Justice Act, contending that the committee’s decision should not be reviewed as administrative action under the legislation.

Disclosures and the president’s impartiality concerns

The committee’s reversal followed scrutiny of Madonsela’s previous legal work for the ANC and his involvement as one of President Cyril Ramaphosa’s designated representatives at the Judicial Service Commission.

According to Gana’s affidavit, Madonsela disclosed that he had received a brief from Mongezi Ntanga Attorneys on June 5 involving legal opinions linked to the impeachment process. The work included advice on Parliament’s options after Ramaphosa approached the courts to halt the inquiry, as well as the possible introduction of suitability criteria for committee members.

The ANC later confirmed that Madonsela and junior advocate Mshengu had prepared written opinions for its parliamentary caucus. The opinions were referenced in the party’s submissions on the proposed terms of reference for the inquiry.

Ramaphosa subsequently wrote to the committee on August 18, expressing concern about Madonsela’s previous role as his designated JSC representative and his legal work for the ANC. He asked the committee not to confirm the recommendation, as he was not convinced that Madonsela would be impartial in leading evidence related to the controversial burglary at his Phala Phala farm.

Gana says he then instructed the committee secretary and legal advisers to delay briefing the State Attorney until the committee had considered the President’s concerns.

Assessing potential conflicts of interest

A legal opinion obtained by the committee did not find that Madonsela’s former JSC role established a reasonable probability of bias. However, the additional information about his work for the ANC raised questions about whether his appointment could create a perception of a conflict of interest.

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Gana says the committee’s deliberations were not an allegation of professional misconduct against Madonsela but a reconsideration of whether he remained suitable for the role in light of the fuller information.

“The issue before the committee was therefore never an accusation of misconduct or dishonesty against Adv Madonsela SC. It was whether, on the fuller facts, the committee remained satisfied that its own standard was met.”

Political parties vote on the withdrawal

On September 1, the committee voted to withdraw its recommendation, with 18 members supporting the decision and nine opposing it. The ANC, DA, IFP, Patriotic Alliance, Freedom Front Plus and African Christian Democratic Party backed the move. The MK Party, EFF, ActionSA, Build One South Africa, African Transformation Movement and United Africans Transformation voted against it.

Gana rejects suggestions that the decision was dictated by the ANC or Ramaphosa. He also disputes ALPA’s contention that the withdrawal undermined transformation in the legal profession.

“The committee did not confer a veto on the President or adopt the ANC’s wishes. The ANC’s letter sought no relief and no view on the appropriate outcome. The President’s objection was referred for independent advice, was answered by the candidate, and was, on its first ground, rejected by the advisers and not adopted by the committee,” he explained.

The committee subsequently reopened nominations for the post but deferred further steps in the selection process while the court proceedings were pending.

Gana has asked for the applications to be dismissed with costs, including the costs of two counsel, alternatively for the question of costs to be reserved.

Queenin Masuabi