By Simon Nare
Parliament’s Section 89 Impeachment Committee chairperson Makashule Gana has filed court papers in the Western Cape High Court opposing the Economic Freedom Fighters’ legal challenge to the committee’s decision to rescind its recommendation of Advocate Thandazani Madonsela as its evidence leader.
In papers opposing the EFF’s application and a separate challenge by the African Legal Professionals Association (ALPA), Gana described both applications as premature, arguing that they had been brought while the parliamentary process was still incomplete.
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He also argued that the EFF had failed to use the parliamentary processes available to it.
Gana, who filed the papers on behalf of the committee and was cited as a respondent by both the EFF and ALPA, argued that the committee’s recommendation did not constitute administrative action under the Promotion of Administrative Justice Act and had no direct external legal effect.
“No right cognisable interest was conferred by the recommendation or affected by its rescission and ALPA cannot seek relief for a practitioner who himself abides,” Gana said in the papers.
He argued that, should the court consider the merits, the applicants were applying the wrong standard.
“They ask whether Advocate Madonsela SC was actually conflicted under the professional rules or the test for adjudicators, when the directive, which they leave intact, required that there be no perceived conflict in respect of the matter,” Gana said.
He further argued that the committee was not functus officio because nothing had been implemented, and that the Assembly Rules and the practice of the National Assembly Table allowed decisions to be revisited before they took effect.
Gana said setting aside the rescission while preventing the committee from making another recommendation would turn an interim recommendation into an entitlement and “bypass institutional, financial and procurement stages the directive prescribes”.
He argued that such an order would also substitute the court’s choice of Parliament’s counsel for the committee’s evaluative judgment under criteria that had not been challenged.
The EFF filed court papers on September 8 seeking to set aside the Impeachment Committee’s decision to rescind its recommendation of Madonsela as evidence leader.
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The party argues that the decision was irrational and unlawful and was driven by the ANC to delay the impeachment process against President Cyril Ramaphosa.
The EFF wants Madonsela reinstated and seeks an order preventing the committee from appointing another evidence leader.
The committee is investigating whether there are grounds for Ramaphosa’s removal under Section 89 of the Constitution in connection with the theft of foreign currency from his private Phala Phala game farm in Limpopo.
