The Western Cape High Court on Friday ruled in favour of President Cyril Ramaphosa in his urgent application to temporarily halt public hearings by Parliament’s Section 89 Impeachment Committee.

In a majority judgment, the court granted Ramaphosa an interim interdict preventing the committee from proceeding with public hearings until his judicial review application has been finalised.

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Ramaphosa launched the urgent application to pause the parliamentary inquiry into his handling of the theft of foreign currency from his private Phala Phala farm.

The president wants the committee’s public hearings placed on hold pending the outcome of his application to review and set aside the Independent Panel report, which found prima facie evidence that he may have a case to answer over the Phala Phala matter.

The ruling does not determine the merits of Ramaphosa’s review application, which will be considered separately from 2 to 4 September.

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The Western Cape High Court is expected to deliver judgment on Friday morning in President Cyril Ramaphosa’s urgent application to suspend Parliament’s Section 89 impeachment committee pending the outcome of his review of the independent panel’s report that recommended an impeachment inquiry.

Judgment has been set down for 10am after a full bench heard two days of argument last week.

Ramaphosa is seeking an interim interdict preventing the committee from proceeding with public hearings until the court has ruled on his review application, which is scheduled to be heard in September.

The president is challenging the independent panel’s finding that there was sufficient evidence for Parliament to establish an impeachment committee.

His legal team argued that the panel applied the wrong legal test by relying on a prima facie standard rather than determining whether sufficient evidence existed to justify an inquiry.

Advocate Wim Trengove SC, appearing for Ramaphosa, also argued that the panel failed to properly consider whether there was evidence that the President had acted intentionally or in bad faith in relation to allegations arising from the Phala Phala matter.

Trengove told the court that Parliament’s impeachment rules were intended not only to hold presidents accountable but also to protect them from being subjected to unjustified impeachment proceedings.

Parliament, along with the Economic Freedom Fighters (EFF), the African Transformation Movement (ATM) and other respondents, opposed the application.

They argued that the Constitutional Court had already directed Parliament to proceed with the Section 89 process and that the impeachment inquiry should continue while Ramaphosa’s review application is heard separately.

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President Cyril Ramaphosa’s legal team has rejected claims that the Constitutional Court’s earlier Phala Phala judgment effectively settled the issues at the heart of his bid to halt Parliament’s impeachment process, telling the Western Cape High Court the country’s highest court never ruled on the legality of the independent panel’s findings.

The High Court heard further argument on Thursday in Ramaphosa’s urgent application to stop the public hearings of Parliament’s Section 89 impeachment committee pending a review of the independent panel’s report that found sufficient evidence for an impeachment inquiry.

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Advocate Wim Trengove SC, for Ramaphosa, argued that while the Constitutional Court referred the panel’s report to Parliament’s impeachment committee in May, it did not determine whether the panel had correctly applied the law.

“What is absolutely plain is that it did not purport to determine any of these issues before you,” Trengove said.

“It did not apply its mind to it and it made no determination of any of these issues.”

He said the Constitutional Court’s order simply implemented Parliament’s rules by referring the report to the impeachment committee and was silent on how the committee should proceed thereafter.

“The Constitutional Court order says nothing about the way in which the impeachment committee should deal with the report. Those are matters regulated by the rules and not by the Constitutional Court order.”

Trengove maintained that the independent panel applied the wrong legal test by assessing whether there was merely a prima facie case instead of determining whether there was sufficient evidence to justify an impeachment inquiry.

He also argued that the panel failed to consider whether there was evidence that Ramaphosa had acted intentionally or in bad faith in relation to allegations arising from the Phala Phala matter.

Counsel for the Economic Freedom Fighters, Advocate Dali Mpofu SC, disputed that argument, saying the Constitutional Court had already been presented with Ramaphosa’s complaints about the panel’s interpretation of the “sufficient evidence” test.

“The Constitutional Court heard everything you’ve heard,” Mpofu told the court.

He argued that despite those submissions, the Constitutional Court still directed that the matter proceed to Parliament’s impeachment committee.

“Our submission is that the order you are being asked to make would offend exactly against that paragraph,” Mpofu said.

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Mpofu further argued that the court should balance any prejudice claimed by Ramaphosa against the public interest in holding the President accountable.

“The task of the judges is to take both what Mr Trengove says and what I say… and then say which of those two harms,” he said.

In reply, Trengove insisted the Constitutional Court had deliberately left the review issues undecided.

“It might have been matters argued before the court, but the court chose not to decide those issues,” he said.

The three-judge bench reserved judgment after concluding two days of argument, with a ruling expected by the end of next week.

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Parliament’s Section 89 Impeachment Committee has rejected draft wording that appeared to allow President Cyril Ramaphosa’s evidence on the Phala Phala scandal to be presented by a legal representative instead of by the President himself.

Committee members met on Wednesday to consider and deliberate on the draft terms of reference and discuss the process to appoint evidence leaders to lead witnesses in the inquiry into Ramaphosa’s handling of the theft of foreign currency from his private Phala Phala farm.

The concern centred on Rule 16.10 of the draft rules, which states: “If the president elects to testify and there is a president’s representative, the president may elect that their evidence is presented by the president’s representative.”

Several MPs said the wording should be amended or tightened because it appeared to give Ramaphosa leeway not to attend the inquiry personally, despite being the subject of the proceedings.

They argued that while Ramaphosa was entitled to legal representation, his lawyers could not testify or answer questions on his behalf on matters that were within his personal knowledge.

The committee is considering its terms of reference after the Constitutional Court revived the impeachment process regarding the 2020 theft of US dollars from the farm.

Ramaphosa has denied wrongdoing and has brought an urgent application in the Western Cape High Court to interdict the committee, which the committee is opposing.

African Transformation Movement leader Vuyolwethu Zungula said if Ramaphosa elected not to cooperate with the committee and chose not to take part, the committee would have no choice but to summon him.

“If he is summoned and he refuses to come for whatever reason, we must make an inference because he has a legal obligation to account,” he said.

Economic Freedom Fighters leader Julius Malema submitted that it could not be acceptable for the President not to attend, as he was the “main man” of the inquiry.

Malema said Ramaphosa could bring his legal team and be allowed to consult with them, but would have to give testimony personally.

He also rejected the possibility of Ramaphosa giving evidence virtually, insisting that the President would have to attend the inquiry in person and face the committee.

“We don’t hold the president accountable through a legal representative because we have not voted a legal representative and there is no evidence that is going on hybrid or virtually. Every evidence is going to be presented in a physical meeting,” he said.

uMkhonto weSizwe Party parliamentary leader Dr John Hlophe echoed Malema’s position, saying Ramaphosa had no option but to come and testify and tell the nation what happened at the farm.

“The president has given public statements and public accounts relating to the whole incident of Phala Phala. Some of the questions we are going to ask here, are peculiarly within the knowledge of the president. Nobody else can give answers thereto.

“And we are entitled as this committee to test the version that he has already given publicly against the evidence that he will give here and the issues of credibility may come in,” he said.

Hlophe said if there was a case for Ramaphosa to answer and he elected not to testify, an adverse inference could be drawn against him in law. He said the President could therefore not have a legal representative testifying on his behalf.

Committee chairperson Makashule Gana gave political parties until 10 July to make written submissions on the draft terms of reference.

On the appointment of evidence leaders, the committee resolved to start the process of identifying and recommending an evidence leader who will guide the presentation of evidence before the committee.

Members also agreed that evidence leaders would not be subjected to vetting.

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The chairperson of Parliament’s Section 89 Impeachment Committee, Makashule Gana, has filed court papers opposing President Cyril Ramaphosa’s urgent application to halt the committee’s work on the Phala Phala matter.

The matter is set to be heard in the Western Cape High Court on 15 and 16 July.

In a statement issued by Parliament on Monday, Gana confirmed that he had filed an answering affidavit opposing Ramaphosa’s bid to stop the committee from proceeding while the President’s review application is before the courts.

Gana said the committee would continue with its work despite the legal challenge and would meet on Wednesday to consider its draft terms of reference and the process for appointing evidence leaders.

Ramaphosa is seeking an interdict to prevent the committee from continuing while his review application challenging the impeachment process is being considered by the courts.

The committee was established after the Constitutional Court’s 8 May judgment set aside the National Assembly’s 2022 decision not to proceed with the impeachment process and referred the Independent Panel’s report to an Impeachment Committee for consideration.

The Independent Panel had found, on a prima facie basis, that Ramaphosa may have committed serious violations of the Constitution or the law and serious misconduct in relation to the 2020 theft of foreign currency from his Phala Phala game farm in Limpopo.

In his answering affidavit, Gana said that granting the interdict would effectively suspend the committee’s work for years while legal proceedings and possible appeals run their course.

“What it means is that the Committee’s work will remain suspended for a few years taking into account that legal processes in courts take time,” Gana said.

He said such a delay would undermine Section 237 of the Constitution, which requires constitutional obligations to be performed without delay.

Gana maintained that the committee had already begun its work and rejected any suggestion that it had not commenced the impeachment process. He said the committee’s work included preparatory meetings, setting procedures and preparing for the appointment of evidence leaders.

A central argument in Gana’s affidavit is that the Constitutional Court’s judgment of 8 May is final and binding.

He contended that the High Court lacks jurisdiction to halt the implementation of a Constitutional Court order.

“The High Court simply lacks jurisdiction to stay the implementation of the order of the Constitutional Court,” Gana stated, adding that only the Constitutional Court could alter or suspend its own orders.

Gana also argued that Ramaphosa’s review application attacks a report that has already been considered by the Constitutional Court and referred to the impeachment committee, making any High Court review largely academic.

He further warned that an interdict would violate the constitutional principle of separation of powers by preventing Parliament from carrying out a function specifically mandated by the country’s highest court.

Addressing concerns raised by the President about possible reputational harm during the inquiry, Gana said the committee would conduct its work independently, fairly and transparently. He stressed that the President would have opportunities to challenge evidence and present his version of events.

Gana also noted that the committee itself cannot remove the President from office. Any recommendation for removal would have to be referred to the National Assembly, where a two-thirds majority would be required to support impeachment.

“The President will not be removed by the Committee,” he said.

“If at the end of the enquiry none of the charges are supported by credible and admissible evidence, the Committee is in law enjoined to return a verdict of not guilty.”

Gana concluded that Ramaphosa had failed to establish a right worthy of urgent protection and that the requirements for an interdict had not been met.

“It is plain from the foregoing that the interdict sought cannot succeed,” he said.

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Some opposition parties have accused National Assembly Speaker Thoko Didiza of abandoning her constitutional duty after she chose not to directly oppose President Cyril Ramaphosa’s urgent court bid to halt impeachment proceedings against him.

Parliament confirmed on Sunday that Didiza had resolved to “file a notice to abide by an explanatory Affidavit alongside the Impeachment Committee’s opposition papers” in the Western Cape High Court.

The court application seeks to stop the work of the Section 89 impeachment committee pending the finalisation of Ramaphosa’s review application.

Parliament said Didiza’s explanatory affidavit would assist the court on “the stringent constitutional obligations on the National Assembly to proceed with and finalise the section 89 proceedings”.

Parliament said Ramaphosa’s legal team had previously asked the Speaker’s office to halt the committee’s work, but the request “was not acceded to, because doing so would have been in contempt of the Court and in terms of the Rules of the National Assembly the matter is in the hands of the Impeachment Committee, which should not be interfered with”.

The Impeachment Committee, chaired by Makashule Gana, has resolved to oppose Ramaphosa’s application and asked Didiza to support its position.

The EFF called Didiza’s decision “reckless, irrational, and irresponsible” and a “shameful abdication of constitutional responsibility by the Speaker”.

“The impeachment process is not a personal dispute between the President and his political opponents. It is a constitutional mechanism designed to ensure that no individual, regardless of status or office, is above the law,” the EFF said.

The party said the committee had taken a decision, supported by an “overwhelming majority of members,” to oppose Ramaphosa’s application and had relied on legal advice that “a lower court cannot interdict a constitutionally mandated parliamentary process”.

The EFF accused Didiza of ignoring legal advice, saying she had “chosen a partisan and irrational path”.

“This effectively means the Speaker is disregarding two competent legal opinions, one obtained by the Impeachment Committee and one obtained by herself, both of which strongly support opposition to the President’s application,” the party said.

The EFF said it was “losing confidence in Didiza,” accusing her of repeatedly showing “her inability to discharge her constitutional responsibilities as the head of an independent arm of the state.”

“Her conduct continues to undermine Parliament’s integrity and independence, while subordinating it to the factional political interests of the ANC and its President,” the party said.

The MK Party also rejected Didiza’s decision, saying it was “deeply concerning because it risks weakening Parliament’s constitutional duty to hold the executive accountable”.

It said Parliament’s legal processes had produced advice supporting a particular course of action, and any decision to depart from that position had to be “carefully justified and explained”.

“History has a way of judging harshly those who, at critical moments, fail to defend constitutional principles, accountability and the integrity of democratic institutions,” the MK Party said.

It said Parliament “belongs to the people of South Africa” and must remain an institution that protects “transparency, oversight and the rule of law”.

ATM parliamentary leader Vuyolwethu Zungula also criticised Didiza, accusing her of ignoring a legal opinion she had commissioned at parliamentary expense.

Zungula said Ramaphosa’s application sought to restrict Parliament’s constitutional duties under sections 42 and 55 of the Constitution, and that Didiza had a duty to defend the institution.

“The speaker-the head of the institution-has a legal obligation to ensure that Parliament does operate in line with the constitution and anything that seek to constrain or is a threat to the work of Parliament,” Zungula said.

“The speaker must be the person to oppose it, therefore it cannot be that the speaker then decides to abide, whereas the legal duty she has was is to oppose, especially in light that the speaker received, in fact, not even received a legal opinion.”

He said the legal opinion had made it clear that the correct constitutional course was for the Speaker to oppose the application, but that she had failed to act accordingly.

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National Assembly Speaker Thoko Didiza will not oppose President Cyril Ramaphosa’s urgent court bid to stop Parliament’s Phala Phala impeachment inquiry from proceeding.

Didiza, who has been cited as the first respondent in the case, filed a notice indicating that she would abide by the Western Cape High Court’s ruling.

Ramaphosa is seeking an interdict against the National Assembly’s Section 89 impeachment committee while he pursues a review of the independent panel report, which the Constitutional Court ordered Parliament to refer to the committee.

The matter is set down for hearing on 15 and 16 July. Ramaphosa launched the urgent application on 12 June.

The impeachment committee has resolved to oppose the president’s application, saying it remains under a constitutional obligation to continue with the process unless a court orders otherwise. It had also asked Didiza to join the opposition to Ramaphosa’s court bid.

The committee is due to meet on 24 June to consider its draft terms of reference and the appointment of evidence leaders.

The impeachment process was revived after the Constitutional Court ruled on 8 May that the National Assembly’s 2022 decision not to refer the Phala Phala report to an impeachment committee was invalid.

The court ordered that the independent panel report be referred to the impeachment committee for consideration under the National Assembly rules.

The Phala Phala matter relates to the theft of foreign currency from Ramaphosa’s private farm in Limpopo in February 2020. Ramaphosa has denied wrongdoing and has previously said the money came from the sale of buffalo on the farm.

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The National Assembly Rules Committee has resolved to remove the fit and proper rule when it referred the Section 89 Impeachment Committee guidelines to probe President Cyril Ramaphosa’s handling of the theft of foreign currency in the private Phala Phala farm.

In a virtual meeting on Friday, chaired by Speaker Thoko Didiza, the committee deliberated on the rules, and after submissions by members from various political parties, Didiza appealed to the members not to put the rule to a vote but rather refer the guidelines to the National Assembly for a vote without the fit and proper rule.

Her proposal was opposed by the DA and the ANC, with chief whip Mdumiseni Ntuli appealing that the rule must stand and be canvassed at a later stage as the proceedings on the impeachment were ongoing. This was opposed by the main opposition party in parliament the uMkhonto we Sizwe Party, the Economic Freedom Fighters, and other smaller parties.

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The rule has proved contentious since the establishment of the committee, as members questioned who had the authority to decide which member was fit and proper, since all MPs were deemed fit to carry out parliamentary work. They also questioned the criteria that would be used to identify which member was fit and proper.

The fit and proper rule is deemed crucial for a committee that could potentially remove a sitting president and is meant to ensure that members making the final decision on presidential impeachment are legally qualified, unbiased and beyond ethical reproach.

Didiza, addressing the committee after listening to arguments and submissions, said the challenge with the rule of fit and proper was how it was going to be applied since it was not going to be implemented in retrospect.

The speaker added that there was no need to seek a legal opinion on the rule as there was no precedent, and if the committee had to go that route, it would have to look beyond the country’s borders on how other parliaments have interpreted the rule and how they applied it.

She further argued that the rule would still remain subjective.

“It also doesn’t deal with the issue of dispute resolution mechanism because if we are still going to ask the parties to give names having looked at whether these are the people who qualify in the criteria that we have made and when that name has been put, other parties object to it, or even members of the public object to it, and say, but this individual doesn’t meet the fit and proper, so who becomes the arbiter in that instance, and I think that in my view it’s important,” she argued.

Didiza said again if the National Assembly did not determine which member was fit and proper it would still remain subjective and reasoned that perhaps the matter should have been addressed through a constitutional amendment.

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This would have informed the electorate when voting for their public representatives.

“They would have at least met this threshold of fit and proper, so that when members come to parliament, they can serve in any other committees. The issue of propriety, for instance, who will determine it? And I would use a very maybe subjective issue, if a person has had a number of judgments because either they’ve not paid for this or that, if a member is in the credit bureau or whatever, if a member might have been imprisoned and five years or 10 years.

“Who determines how many years must lapse before that member can be regarded as fit and proper?” she asked.

The parliamentary legal service had advised that if the committee agreed to the rule to include fit and proper then for a member to be fit and proper that member must posses both the requisite capacity and character to serve on the impeachment committee.

Further political parties that appoint a member to the committee must ensure that the member was fit and proper.

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Former Crime Intelligence boss Mulangi Mphego has denied any involvement in the disappearance of documents — linked to the Phala Phala investigation — from the Pretoria home of since deceased Deputy National Commissioner for Crime Detection, Lieutenant-General Sindile Mfazi.  

The documents, linked to the investigation into the theft of foreign currency from President Cyril Ramaphosa’s private Phala Phala game farm, are alleged to have disappeared after Mfazi’s death in 2021, when his belongings were packed at his Pretoria home and delivered to his wife, Malindi, in the Eastern Cape.

Mphego has been at the centre of speculation in the Phala Phala investigation as former head of intelligence.

In a detailed statement issued this week, he said  he had chosen to remain silent and not publicly engage on the matter even though he “felt hamstrung and trapped in a complex emotional knot between personal loyalty and professional ethics”.

Mphego, who was former deputy president David Mabuza’s special advisor, said that he had chosen to remain quiet out of a desire to protect personal matters, but now that there were people who had sent “digital assassins” to hijack Mfazi’s memory, he would no longer remain silent.

He denied any political links to Ramaphosa, as has been widely claimed.

“The sensationalist claims suggesting I had political links to President Ramaphosa, or any role in the alleged disappearance of Phala Phala investigation files from Pitso’s (Mfazi) possession, are absolute fabrications.

“I hold absolutely no brief for President Ramaphosa or any individual associated with the Phala Phala debacle. I completely reject any sickening attempt to link my name to the alleged sordid actions,” he said in the statement.

He said when he served in The Presidency between 2018 and 2023, he was explicitly working as the since deceased Mabuza’s special advisor, and never worked with the president.

He also said he had no knowledge that Mfazi, whom he regarded as his best friend, was investigating the Phala Phala matter or that he had any documents linked to it.

Mphego further denied setting foot inside Mfazi’s Pretoria home during the period after his death, rejecting allegations that he had personally packed or removed any documents from the house.

He said his only involvement was responding to a distress call from Steve, one of the people he said had been involved in transporting Mfazi’s belongings.

According to Mphego, Malindi had instructed three people, whom he named as Felicia, Steve and Luyolo, to pack Mfazi’s belongings and deliver them to her in East London.

“Under Malindi’s direct orders, Felicia, Steve, and Luyolo loaded Pitso’s black Mercedes-Benz bus. Steve, accompanied by Luyolo, then drove that bus straight to Malindi in East London, handing over the vehicle and its entire contents directly to her.

“Any documents Pitso possessed would have been packed into that specific bus and delivered to Malindi. That is exactly where investigators must probe,” he said.

Mphego also revealed that he had initially thought that Mfazi’s death was related to COVID-19, but he has since been “utterly shocked to learn of allegations pointing to a far sinister possibility: that he was murdered”.

He called for a “rigorous, uncompromised, and formal criminal investigation” into Mfazi’s death and said he was prepared to assist investigators in any credible process aimed at establishing the truth.

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Parliament’s Impeachment Committee on the Section 89 Enquiry will oppose President Cyril Ramaphosa’s urgent court application to interdict its inquiry into his handling of the theft of foreign currency from his private Phala Phala farm.

The committee, which met virtually on Thursday, adopted the majority view that it should oppose Ramaphosa’s application after the president cited the committee through its chairperson, Rise Mzansi MP Makashule Gana.

Ramaphosa wants the Western Cape High Court to halt the impeachment process pending the outcome of his judicial review of the independent panel report, which found he may have a case to answer over the Phala Phala matter.

Following advice from Parliament’s Constitutional and Legal Services Office, Advocate William Mokhari, MPs deliberated on the options available to them, including filing an explanatory affidavit. But the majority said Gana must oppose Ramaphosa’s application so that the work of the committee can proceed.

“The prevailing opinion based on the opinions that have been made by the parties is that the committee needs to oppose the urgent application of an interdict by the president.

“So, that is the prevailing opinion of the committee, I don’t even need to put it to a vote. The numbers are such that those who are on the side of opposing, they are in the majority,” said Gana.

He said since he had been cited personally as the chairperson of the committee, he aligned himself with the view of the majority of committee members and would oppose the application as chairperson.

Gana said the committee would also petition National Assembly Speaker Thoko Didiza, who has also been cited in Ramaphosa’s court papers, to join in opposing the urgent application.

“If the speaker decides not to oppose the urgent application, as the chairperson of the committee and the second respondent to the urgent application, I will represent the committee in opposing the application,” he said.

Gana said after receiving the legal opinion from Mokhari it was no longer necessary to seek a second legal opinion, as the committee was on a “good footing” to oppose the application.

Ramaphosa filed the urgent court application to stop the committee from proceeding with an inquiry into whether he breached the Constitution in his handling of the theft at his farm, arguing that the process would undermine ongoing judicial review proceedings.

“Even if only part of the impeachment enquiry is undertaken before the review process is determined, substantial harm will already have been done,” Ramaphosa said in the affidavit.

He contends the matter is urgent because allowing the proceedings to continue would render any later review largely ineffective.

“In those circumstances, the review court will be confronted with a situation in which consequences flowing from the report have already occurred before the validity of the report has been determined. The effectiveness of the review proceedings will have been materially undermined,” he said.

Ramaphosa has launched a judicial review of the Independent Panel’s findings, arguing that it applied the wrong legal standard and failed to present sufficient evidence to justify impeachment proceedings.

The Constitutional Court earlier set aside the National Assembly’s 2022 decision not to proceed with the Section 89 process and referred the independent panel report to an Impeachment Committee for further consideration.

Mokhari told committee members that the impeachment proceedings would not disadvantage Ramaphosa, since he would be given an opportunity to account to the committee and give his side of the story.

He added that the Western Cape High Court was legally in no position to set aside a Constitutional Court order.

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