Why Ramaphosa may lose Phala Phala interdict but keep his right to fight

If the Wednesday proceedings are anything to go by, President Cyril Ramaphosa may leave the Western Cape High Court with his right to challenge the Phala Phala panel report intact, but without the protection he wants while that challenge is being decided.

That is the central contradiction exposed by the questions from the three judges hearing his urgent application.

From the Day-1 proceedings alone – noting that the hearings continue on Thursday – the court appears reluctant to accept the argument that Ramaphosa has no right to approach it for temporary protection. But it appears equally reluctant to stop Parliament from performing an accountability function revived by the Constitutional Court.

The distinction is important. A review asks a court to decide whether an exercise of public power was lawful. An interim interdict asks the court to stop the consequences of that exercise before the review is decided.

Ramaphosa may therefore have a valid right to review the independent panel report without automatically having a right to suspend the impeachment committee.

This is where the legal dispute becomes a political one.

At one level, the case concerns the meaning of phrases such as “prima facie case”, “sufficient evidence” and “unless and until”. At another, it concerns which institution must carry the risk of a potentially unlawful process.

Ramaphosa says he should not be forced to appear before an impeachment committee relying on a report that may later be struck down. His opponents say Parliament cannot be paralysed every time a president challenges one step in a constitutional accountability process.

‘How will Gana protect the president if the report is ultimately found to be unlawful?’

Judge André le Grange forced this tension into the open when he questioned Advocate William Mokhare SC, representing impeachment committee chairperson Makashule Gana.

Mokhare said Gana would protect Ramaphosa by ensuring that the hearings were fair and that witnesses were not abused.

But Le Grange asked: “How is the chairperson going to protect the president against an unlawful report?”

Mokhare conceded that Gana could provide “process protection”, not substantive protection from the report itself.

“The committee will sit with a report to question the president,” Le Grange said. “How will he protect the president if the report is ultimately found to be unlawful?”

That exchange revealed the strongest part of Ramaphosa’s case.

Once he has appeared publicly, answered allegations and been questioned on the basis of the panel report, a later court victory cannot erase the political spectacle. A judgment can set aside a report. It cannot make the hearings unseen or restore the authority lost during them.

But courts do not grant interdicts merely because political harm may occur.

Ramaphosa must establish irreparable legal harm, a strong right requiring protection, the absence of another adequate remedy and a balance of convenience favouring the suspension of Parliament.

Separation-of-powers problem

He faces an additional obstacle because he is asking one branch of government to stop another from exercising constitutional power.

This is the separation-of-powers problem.

The judiciary has the power to declare Parliament’s conduct unlawful. But it must be cautious before stopping Parliament in advance, particularly where the Constitutional Court has already found that the National Assembly previously acted irrationally by terminating the Phala Phala process.

Ramaphosa’s opponents argue that this makes the application exceptional in the wrong direction: granting the interdict would risk repeating, through judicial order, the very interruption that the Constitutional Court reversed.

Judge Diane Davis nevertheless challenged the claim that the Constitutional Court had closed the door on interim relief.

She asked whether its order should not be interpreted according to the issues that were actually before it.

The Constitutional Court had decided whether Parliament could vote down the panel report without a fuller inquiry. It had not decided whether the report itself was lawful.

“It didn’t ask the question that the review court is going to have to ask,” Davis said. “If that was not what it was grappling with, surely it can’t have definitively pronounced on it.”

This suggests the High Court may reject the argument that it lacks jurisdiction.

But rejecting that argument does not mean Ramaphosa wins.

What’s the value of a review if impeachment process continues?

Judge Matthew Francis exposed the weakness in the respondents’ opposite position when he asked Dali Mpofu SC what value a review would have if the impeachment process could continue before the review was decided.

“What is the purpose of having a review that cannot be exercised until the whole procedure has been completed?” Francis asked.

Mpofu’s answer was that the review and the impeachment inquiry could proceed in parallel.

That answer is legally coherent but politically severe.

It means Ramaphosa may win the review after suffering the consequences the review was intended to prevent. But it also means the president cannot suspend constitutional accountability merely by filing court papers.

The deeper divide is between two understandings of democracy.

The first emphasises the dignity and stability of the presidency. It argues that a head of state should not be subjected to a punitive public process unless the legal foundation is sound.

The second emphasises accountability. It argues that the dignity of the office cannot become a shield protecting its occupant from questions that ordinary citizens are entitled to have answered.

Old contradiction

This divide also confronts the African National Congress (ANC) with an old contradiction.

The party historically defined itself as an instrument for democratising the state and making power answerable to the people. In government, however, it increasingly confronts accountability mechanisms as threats to incumbency, institutional stability and the authority of its leaders.

The Phala Phala case now places those two impulses against each other: the ANC’s historical language of accountability and the presidency’s present demand for protection.

The likely ruling is that Ramaphosa retains the right to challenge the panel report, but Parliament retains the right to continue until he actually succeeds.

The court may recognise the danger identified by Le Grange and Davis without finding that it satisfies the exceptional legal threshold for stopping Parliament.

Ramaphosa may therefore win the argument that the review is legitimate and lose the argument that the country must wait for its outcome.

ALSO READ: Analysis: Who blinks first? Ramaphosa, Parliament and the constitutional showdown

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Setumo Stone