By Simon Nare
The parliamentary Impeachment Committee’s recommended evidence leader, Advocate Thandazani Madonsela SC, has rejected President Cyril Ramaphosa’s objections to his proposed appointment, saying that the concerns are unfounded and do not amount to a conflict of interest.
Madonsela, in a letter to Parliament’s senior legal adviser responding to Ramaphosa’s concerns, said the facts raised by the president had already been disclosed before the committee voted to recommend him for the position.
ALSO READ: SEZs must turn R380bn investment pipeline into jobs, skills development, says Mahlalela
He said he had declared the relevant information to a senior parliamentary legal adviser when he made himself available for the role.
Madonsela also argued that the principles governing the recusal of an adjudicator were not applicable to the evidence leader, who does not decide the outcome of the inquiry.
He said “the recusal principle on which the president’s letter is modelled are inapposite”.
Madonsela further said even if the principle for recusal was relevant, “the president’s concerns would be unavailing”.
Ramaphosa raised two concerns in a letter to the committee, which he said created the potential for a conflict of interest.
The first related to Ramaphosa’s decision to replace Madonsela as one of his designees 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 Section 89 parliamentary rules and processes, which ANC secretary-general Fikile Mbalula had publicly disclosed.
Madonsela has said the legal work concerned procedural matters and not the merits of the Phala Phala allegations that are before the impeachment committee.
He disputed that either issue gave rise to a conflict of interest.
“The president’s first concern/objection is refuted by the record, and the second concern/objection is covered by my disclosure and the stated position of the ANC – the party to have been advised and the third is not a conflict at all.
ALSO READ: Breytenbach slams Kubayi over delay in IDAC head appointment
“The provisions of the Constitution and NA Rules which the president incomes confer no right to object to still less to veto, the committee’s choice of the person who is to assist it,” he said.
Madonsela said he had made himself available to assist the inquiry and not to become part of its political controversy.
Madonsela said a presidential designee sits on the JSC as a commissioner bound by the Constitution and not as the president’s representative.
He added that during the two years he served on the JSC he had no personal dealings with Ramaphosa and that the Constitution provides for designated members to serve until they are replaced by those who designated them.
“Replacement is the ordinary constitutional mechanism by which such tenure ends. It requires no reasons and carries no stigma. Nothing said at the time, or in the president’s letter, suggests that I was replaced for anything that would cause me grievance or any reason reflecting adversely on me,” he said.
Madonsela said that after he was formally informed that he had been replaced, he thanked the president for the honour of having been given the opportunity and that he had had no dealings with Ramaphosa in the four years since.
“The alleged apprehension the president advances is therefore not factually grounded. It is also contradicted by the contemporaneous record. The president does not allege I have ever said or done anything suggestive of grievance and he cannot.”
ALSO READ: South Africa repatriates remains of Namibian liberation heroes in act of rehumanisation
The committee recommended Madonsela as evidence leader on 5 August, but his formal appointment has not yet been finalised.
The committee has since sought legal advice on Ramaphosa’s objections before proceeding with the appointment, with chairperson Makashule Gana saying it wanted to ensure the process remained within the law and minimise the risk of further litigation.
