The Western Cape High Court has questioned the value of President Cyril Ramaphosa’s right to review the Phala Phala panel report if Parliament may complete much of the impeachment process before that challenge is decided.
Adv Dali Mpofu SC, representing former President Jacob Zuma’s MK Party, argued on Wednesday that the court lacked jurisdiction to stop a process flowing from a Constitutional Court order.
He relied on paragraph 139 of the Constitutional Court judgment, which states that a positive panel recommendation must be implemented through referral to an impeachment committee “unless and until the report is set aside on review”.
‘Application cannot halt process’
Mpofu said those words meant the inquiry had to continue until the review court actually overturned the report.
“Not until you lodge an application for review,” he said. “Not until you put in a Part A application. Not even until you get a judgment in the Part A application.”
He said the report remained binding until the final review relief was granted.
Judge Matthew Francis challenged him.
“The Constitutional Court has contemplated a review,” Francis said.
“What is the purpose of having a review that cannot be exercised until the whole procedure has been completed?”
Mpofu said he was not arguing that Ramaphosa could not pursue the review.
‘Review and inquiry can run at the same time’
He said the judicial review and the parliamentary inquiry could run at the same time.
“You could have a parallel process?” Francis asked.
“Absolutely, yes,” Mpofu replied.
He said the Constitutional Court had established a default position that the report remained valid and enforceable while it was under challenge.
“Once the independent panel says there is sufficient evidence, then you cannot deny the people of South Africa the process until it is set aside,” Mpofu said.
The bench tested the consequences of that argument through the example of an unlawfully awarded government tender.
“On your argument, does it mean that even if the tender was unlawfully allocated or awarded and there was serious criminality in awarding that tender, the tender will stand until set aside?” a judge asked.
“Are you suggesting that a person cannot come in and ask for an interim interdict pending the review?”
Mpofu said interim relief might ordinarily be available but argued that Ramaphosa’s case was different because the Constitutional Court had already directed the report into the impeachment process.
Judge Diane Davis questioned whether the Constitutional Court had ever intended to remove Ramaphosa’s right to seek temporary protection.
ConCourt’s ‘relatively neutral language’
She said the order referred the report to the impeachment committee in “relatively neutral language”.
“The thought of an interdict may not even have been present to the mind of the Constitutional Court,” Davis said.
“There is no suggestion in its language that it was.”
She asked how the Constitutional Court could be understood to have removed the right to seek an interdict when that issue had not been before it.
“Would it even have been competent for the Constitutional Court to make such an order in a case where that was not the issue before it?” Davis asked.
‘No power to interfere with ConCourt judgement’
Mpofu maintained that any suspension, even temporary, would alter the effect of the Constitutional Court’s judgment.
“If you are stopping it, you are interfering with that order,” he said.
“You have no power to interfere in a big way, a middle way or a small way with the order of the Constitutional Court.”
The bench also asked what would happen if Ramaphosa eventually won the review.
“Would the effect not be that, in the middle of the whole process, it stops?” a judge asked.
Mpofu agreed that the process would stop at that point.
“Yes, at that point it must stop,” he said. “Not now.”
- The Western Cape High Court questioned the value of President Ramaphosa’s right to review the Phala Phala panel report if Parliament can largely finish the impeachment process before the review is decided.
- Adv Dali Mpofu SC argued that the court lacks jurisdiction to halt the impeachment process because the Constitutional Court ruled a positive panel recommendation must proceed unless the report is set aside on review.
- Mpofu said the report remains binding until final review relief is granted, allowing the parliamentary inquiry and judicial review to run simultaneously.
- Judges challenged whether an interim interdict (temporary suspension) should be allowed, noting the Constitutional Court’s order used neutral language and did not explicitly remove the right to seek temporary protection.
- Mpofu maintained that any suspension interferes with the Constitutional Court’s judgment, which must remain effective until the review concludes, at which point the process would stop if the review succeeds.
