The Section 89 Impeachment Committee has thrown down the gauntlet, resolving to oppose an urgent court action seeking to overturn the axing of its chief evidence leader, Advocate Thandazani Madonsela SC.
The committee which is investigating President Cyril Ramaphosa’s handling of the theft of foreign currency at his Phala Phala farm took the decision on Wednesday during a sitting in Parliament, following legal briefings on separate challenges brought by the Economic Freedom Fighters (EFF) and the African Legal Professionals Association (ALPA) in the Western Cape High Court.
Chairperson of the committee, Makashule Gana, confirmed that the committee will defend its decision in court after a vote that saw members back opposition to the applications by 19 to 9.
“The committee resolved that we must oppose those applications, as they are challenging the decisions of the committee,” Gana said shortly after the vote.
“So the committee will be working with legal services immediately after this meeting, and I will represent the views of the committee in court.”
At the heart of the court battle is the committee’s controversial decision to rescind its earlier recommendation of Madonsela as evidence leader for the Section 89 inquiry.
The EFF approached the Western Cape High Court this week seeking an urgent order to review and set aside that rescission.
The party is also asking the court to set aside any decision to appoint or recommend another person as evidence leader in Madonsela’s place.
ALPA, the second applicant, is also challenging the rescission, arguing that the committee’s decision was unlawful and irrational.
The association is seeking an expedited review of the decision and has made it clear it will challenge any new appointment of an evidence leader pending the outcome of its application.
Members of the committee were briefed by the Parliamentary Legal Services unit on Wednesday on both applications and the grounds for review raised by the applicants.
According to Gana, the briefing outlined the legal risks and the procedural path forward.
After deliberations and input from political parties represented on the committee, Gana put the question of whether to oppose or acquiesce to a vote.
With the 19-9 utcome, the committee has now instructed Parliamentary Legal Services to prepare its opposing papers.
Gana said the legal battle must be resolved before the inquiry can fully proceed with its core mandate.
On the question of finding a replacement for Madonsela, the committee resolved to defer any recommendation of a new chief evidence leader until the outcome of the court challenges is known.
This means the process to appoint a new evidence leader is now on hold, paving the way for the courts to determine whether the committee acted within its powers when it withdrew Madonsela’s name.
The move is aimed at avoiding further legal complications.
If the committee were to appoint a new evidence leader while the rescission is still under judicial review, any new appointment could itself be challenged and set aside, further delaying the Section 89 process.
In addition to the court matter, the committee also considered progress on its terms of reference, which will guide how the inquiry conducts its work.
Gana told members that the terms of reference are now almost finalised.
“The terms of reference are now approximately 90% complete,” he said.
“Parliamentary Legal Services will now incorporate the submissions the committee accepted today into a final draft. This draft will then be presented at the next meeting for committee members to consider and adopt.”
The Section 89 inquiry is a constitutionally mandated process to investigate whether there are grounds for impeachment, and its credibility hinges heavily on the independence and integrity of its evidence leaders.
The legal challenges by the EFF and ALPA have now become the first major test of that process.
The Western Cape High Court is expected to hear the urgent applications in the coming days, with Parliament’s legal team set to argue that the committee was within its rights to reconsider and rescind its earlier recommendation.
The EFF had not yet responded to the opposition of the committee nor have made available their court papers to Africa Daily by the time of publication.
However, in a statement ealier on Wednesday the party said the decision to challenge the rescission of the appointment of Madonsela was taken to safeguard the independence of Parliament from executive control, and to strengthen Parliament’s duty to hold the executive to account, without fear or favour.
EFF Parliamentary media liaison officer Andiswa Madikazi declined to comment on the matter.