By Simon Nare
President Cyril Ramaphosa has objected to the Impeachment Committee’s recommendation of Advocate Griffiths Madonsela SC as evidence leader in its Section 89 inquiry arising from the Phala Phala scandal, a move some opposition committee members described as an attempt to derail the process.
Committee chairperson Makashule Gana told the committee, as it sat virtually on Wednesday to deliberate on the draft terms of reference, that he had received the objection from the president on Tuesday night.
“We are currently consulting with the legal services to guide us on what options are available to the committee, because it is in the interest of the committee that the evidence leader is appointed and that this process proceeds within the confines of the law but also respecting the Western Cape High Court judgement as it relates to the public hearings,” he said.
ALSO READ: Madlanga grills Adams over ‘untruthful’ claim about Rule 3 notice
In his objection to Madonsela’s proposed appointment, Ramaphosa raised two issues which he said created a potential conflict of interest.
The first was that it was on public record that he removed Madonsela as his appointee to the Judicial Service Commission shortly after the 2022 interviews for the appointment of the chief justice.
“In these circumstances, there is a reasonable apprehension that Advocate Madonsela SC may harbour a sense of grievance towards me and that he may act upon it,” he said.
Ramaphosa’s second concern related to legal advice Madonsela had previously provided to the ANC on matters concerning the Section 89 parliamentary rules and processes, which ANC secretary-general Fikile Mbalula had publicly disclosed.
Ramaphosa said ordinarily a legal practitioner ought not to act in a matter that was substantially the same as one in which he or she previously advised a former client who was involved in that matter, particularly where confidential or privileged information may have been disclosed.
Equally, added the president, a person should not assume a decision-making or quasi-adjudicative role in proceedings concerning a matter in which he or she previously acted for, or advised, a party which is directly or indirectly affected by those proceedings.
“On the information presently available, therefore, it seems to me that the appointment of Adv Madonsela SC will violate the above principles. Therefore, I submit that his appointment should not be confirmed,” he argued.
Gana said the committee’s preparatory work would not be affected and would continue, but the president’s objection could delay the appointment of the evidence leader and had to be dealt with speedily “so that this matter of the appointment of the evidence leader can be concluded as soon as practically is possible.”
Gana said as soon as legal advice was provided, the committee would be informed and would have to decide how to move forward.
The inquiry stems from a 2022 independent panel, chaired by former chief justice Sandile Ngcobo, which found prima facie evidence that Ramaphosa may have seriously violated the Constitution and the Prevention and Combating of Corrupt Activities Act, and may have committed serious misconduct over the Phala Phala matter. The matter lay dormant for several years before a Constitutional Court ruling this year revived it and set the current Section 89 Impeachment Committee process in motion.
ALSO READ: WATCH: KZN Health to suspend nurse after video shows patient struck at Durban hospital
In July, the Western Cape High Court granted Ramaphosa an interim interdict preventing the committee from proceeding with public impeachment hearings and hearing oral testimony until his application to review the Section 89 Independent Panel report is determined. The ruling did not prevent the committee from continuing preparatory work, including finalising its terms of reference and the process of appointing an evidence leader.
The committee recommended Madonsela for the position earlier this month after he received nine votes against seven for Advocate Kate Hofmeyr SC, with 11 abstentions. Parliament’s administration is responsible for facilitating the procurement and administrative processes required for the final appointment.
The ANC subsequently wrote to National Assembly Speaker Thoko Didiza to formally place Madonsela’s previous legal work for the party on record. Parliament said the communication did not constitute an objection to his recommendation and did not question his integrity or independence.
Some opposition MPs dismissed Ramaphosa’s objection during Wednesday’s meeting as an attempt to delay or derail the proceedings.
MK Party parliamentary leader Dr John Hlophe told the committee that Madonsela had disclosed his previous legal work for the ANC and that the committee had debated the issue before voting to recommend him as evidence leader.
Hlophe appealed to Gana to protect the integrity of the committee’s work, saying that Ramaphosa should not be allowed to derail the process after the ANC had participated in the committee’s deliberations and abstained from voting on the evidence leader.
Hlophe said the ship had already sailed and the committee should not allow a situation where Ramaphosa became a stumbling block every time it attempted to move forward, even though the process could help clear his name.
“We can’t have a situation whereby, whenever we want to move forward, he puts more and more obstacles. He clearly doesn’t want this work to continue at all. When Advocate Madonsela was nominated, he disclosed everything, and we had a long debate around what he disclosed. It does not constitute any conflict of interest at all,” he said.
