The Constitutional Court’s landmark ruling on the Phala Phala matter represents a defining moment for South African democracy, reinforcing the necessity of effective parliamentary oversight and the duty of public office bearers to account to democratic institutions, according to Lawson Naidoo, director of the Council for the Advancement of the South African Constitution (CASAC).
Speaking after the judgment was delivered, Naidoo described the day as historic – not only because of the court’s findings but also because it marks the 30th anniversary of the adoption of South Africa’s Constitution by the Constitutional Assembly in 1996.
The Constitutional Court found that the rules of the National Assembly were unconstitutional and declared null and void the vote taken in December 2022, when the Assembly decided not to refer the report of the independent panel to an impeachment committee.
Naidoo explained that the judgment clarifies the processes Parliament must undertake to conduct an effective impeachment inquiry into the President. “It deals with issues of accountability – that there needs to be effective mechanisms to ensure proper oversight and accountability in terms of Parliament’s mandate,” he said. “It cannot simply be a procedural tick-box exercise.”
The court’s ruling sets aside the current National Assembly rules insofar as they apply to impeachment proceedings and goes a step further, requiring the National Assembly to refer the independent panel’s report to an impeachment committee in the coming days.
The court delivered three separate judgments. Naidoo noted that the differing opinions reflect the difficult issues the court had to address regarding the extent to which it can interfere in Parliament’s internal rule-making processes. However, the court made a clear finding that where Parliament falls short of constitutional standards – particularly regarding transparency, openness, and effective oversight – “the court will not hesitate to intervene.”
With the ball now back in Parliament’s court, Naidoo expressed measured confidence in the forthcoming impeachment committee process, noting that the court has effectively amended the rules until the Assembly applies its own mind to required changes. He pointed to the recent experience of the ad hoc committee investigating allegations made by General Mbuyiselo Ngubane as evidence that robust questioning can be expected. “The president can expect robust questions,” Naidoo said. “He’ll face undoubtedly hostile questions from members of opposition parties in particular.”
Asked whether President Cyril Ramaphosa could potentially incriminate himself during such proceedings, Naidoo acknowledged that possibility. He noted that various organs of state – including the South African Revenue Service, the Reserve Bank, and the National Prosecuting Authority – have previously conducted investigations, with the NPA deciding not to proceed with charges relating to the Phala Phala burglary. “If new information comes to light as a result of this inquiry in Parliament, then that may open up a new avenue for further investigation by the law enforcement agencies,” he said.
Regarding the timeline, Naidoo said it is “almost impossible” to predict with certainty, but estimated the process would take at least a few months. He noted that all parties represented in Parliament must have representation on the committee, and the president himself could face questioning lasting several days or even weeks.
Naidoo emphasised the precedent the case sets for future presidents, describing it as an affirmation of the vibrancy of South Africa’s constitutional democracy. “We have a Constitutional Court, a judiciary that is independent, that is not afraid to tell Parliament that it has erred in terms of its constitutional responsibilities,” he said.
He added that this is the first time the court has pronounced on a live issue involving a president appearing before a parliamentary committee, and that lessons will be learned during the impeachment committee process. “The precise rules and regulations that govern the functioning of that committee will be something else that we will have to look at in the coming days and weeks,” Naidoo concluded.
