Phala Phala: Court bid says Ramaphosa had no right to block Madonsela
Court bid says Ramaphosa had no right to block Madonsela as a fresh legal challenge seeks to overturn Parliament’s decision to withdraw Advocate Thandazani Madonsela SC as the recommended evidence leader for the impeachment inquiry involving President Cyril Ramaphosa.
The urgent application, filed in the Western Cape High Court by the African Legal Professionals Association (ALPA), argues that Ramaphosa did not have the legal power to object to the parliamentary committee’s choice of evidence leader.
The application comes after the Section 89 impeachment committee reversed its earlier recommendation that Madonsela should lead evidence in the inquiry into the Phala Phala matter. The committee voted 18-9 to rescind the recommendation after considering concerns raised by the president and legal advice from Parliament.
ALPA is asking the court to declare the committee’s decision unconstitutional, unlawful and invalid.
Phala Phala inquiry faces another legal challenge
The Phala Phala impeachment process has faced several legal and procedural challenges since Parliament began working through the Section 89 process.
The latest court application is the second legal challenge relating to Madonsela’s removal from consideration. The Economic Freedom Fighters also launched an urgent application seeking to have the advocate reinstated as evidence leader.
ALPA’s application asks the Western Cape High Court to set aside any decision to call for new nominations or appoint another evidence leader. It wants the matter returned to the parliamentary committee.
The dispute comes at a particularly sensitive stage of the impeachment inquiry, which has already been delayed by litigation and an interim court order obtained by Ramaphosa.
The committee is currently unable to proceed with public hearings while the president challenges the findings of the Section 89 panel that investigated the Phala Phala matter.
Cyril Ramaphosa’s objection to Madonsela
Cyril Ramaphosa formally objected to Madonsela’s proposed appointment in August.
The president raised concerns about a possible real or perceived conflict of interest. One of his concerns related to Madonsela’s previous appointment to the Judicial Service Commission by Ramaphosa.
Ramaphosa removed Madonsela as one of his JSC nominees in 2022, after the interviews for the appointment of a new Chief Justice. The president argued that this history could create a reasonable perception that Madonsela might harbour a grievance against him.
A second concern involved legal advice Madonsela had previously provided to the ANC on matters connected to impeachment.
Ramaphosa’s objection came after the committee had already voted in favour of recommending Madonsela as evidence leader.
The president’s position was that the advocate did not meet the requirement that the chief evidence leader should have no real or perceived conflict of interest.
Thandazani Madonsela had disclosed his previous links
Thandazani Madonsela had disclosed his previous connections before the committee voted on his nomination.
According to the court papers reported by IOL, Madonsela told Parliament’s senior legal adviser that he had no conflict of interest but voluntarily disclosed relevant aspects of his professional history.
He disclosed that Ramaphosa had designated him to the Judicial Service Commission in March 2020 and that the designation ended in March 2022 when the president replaced his nominees.
Madonsela also disclosed that he had accepted a legal brief involving opinions on impeachment matters. He said he was released from that brief before the committee considered his nomination.
His disclosures were presented to MPs before the August vote.
The issue now before the court is whether the committee was entitled to reconsider its recommendation based on those circumstances and, more fundamentally, whether Ramaphosa had a legal right to object to the selection of the evidence leader.
Western Cape High Court asked to intervene
The Western Cape High Court has been asked to determine whether Parliament’s process was lawful.
ALPA chairperson Sthembiso Mbhele argues in the founding affidavit that Ramaphosa relied on powers that the applicable parliamentary rules do not give him.
According to the application, the president is entitled to participate in the inquiry and make submissions, but that does not necessarily mean he can dictate who Parliament chooses to lead evidence.
The application argues that Ramaphosa’s participation rights do not extend to blocking a parliamentary decision about the appointment of an evidence leader.
ALPA further argues that Parliament already had the relevant information about Madonsela’s professional history when MPs initially approved his recommendation.
That argument is central to the association’s case because Parliament’s legal advisers had previously considered the potential conflict-of-interest concerns.
Impeachment inquiry and the evidence leader role
An evidence leader plays an important role in a parliamentary impeachment inquiry, but the role is different from that of a prosecutor or judge.
Parliamentary legal advice cited in the dispute stated that an evidence leader does not determine facts, make findings or decide the ultimate outcome of an inquiry.
Instead, the evidence leader assists the committee by presenting and testing evidence relevant to the inquiry.
That distinction has become important in the dispute surrounding Madonsela.
ALPA argues that the committee’s concerns about his previous professional relationships did not establish that he would be biased or unable to perform the role objectively.
Parliament’s legal services previously advised that there was no evidence of an actual conflict of interest involving Madonsela. The legal advice also reportedly found insufficient objective evidence to establish that Madonsela would be biased against Ramaphosa.
How Madonsela was originally selected
The parliamentary committee initially recommended Thandazani Madonsela on 5 August.
He defeated Advocate Kate Hofmeyr SC in the vote, receiving nine votes compared with Hofmeyr’s seven. Eleven MPs abstained.
The ANC was among those that abstained from the vote. The recommendation was subsequently authorised by National Assembly Speaker Thoko Didiza.
However, the appointment was not fully completed because Ramaphosa subsequently raised his objection.
At the time, committee chairperson Makashule Gana indicated that the remaining administrative step was for the State Attorney to formally instruct Madonsela to lead evidence.
That process was disrupted by the president’s objection.
Parliament later withdrew the recommendation
The committee eventually reversed its position.
On 1 September, MPs voted 18-9 to withdraw Madonsela’s recommendation and reopen the nomination process.
Parliament said the decision followed consideration of legal advice regarding Ramaphosa’s objections.
SABC News reported that parliamentary legal advisers had indicated that the original decision to recommend Madonsela was valid and that there was no indication of a conflict of interest, but suggested that reconsideration could be appropriate in the interests of procedural fairness.
The committee subsequently began considering alternative candidates.
That decision has now triggered the latest court challenge.
What the court challenge means for Ramaphosa
The outcome of the legal challenge could have important consequences for the Cyril Ramaphosa impeachment process.
If the court finds that the committee acted unlawfully when it withdrew Madonsela’s recommendation, Parliament could be required to reconsider the matter.
If the court rejects the application, the committee could continue with the process of identifying and recommending another evidence leader, subject to any further legal challenges.
The case therefore goes beyond the question of one advocate’s appointment. It raises broader questions about the relationship between Parliament and the president during an impeachment process.
It also tests the extent to which a president who is the subject of an inquiry can challenge procedural decisions made by the parliamentary body conducting that inquiry.
The broader Phala Phala controversy
The dispute originates from the Phala Phala scandal involving the theft of foreign currency from Ramaphosa’s Limpopo farm in February 2020.
A Section 89 panel chaired by former Chief Justice Sandile Ngcobo previously found that Ramaphosa had a case to answer concerning the matter.
Ramaphosa has challenged those findings in court and secured an interim interdict that prevented the impeachment committee from holding public hearings while the legal challenge continues.
The money stolen from the farm became the centre of a political controversy after questions were raised about the amount of foreign currency involved, how it was kept at the property and the subsequent investigation into the theft.
Ramaphosa has consistently denied wrongdoing.
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What happens next?
The Western Cape High Court is expected to consider ALPA’s urgent application, while the parliamentary committee has also been dealing with the EFF’s separate challenge.
Meanwhile, Parliament faces the task of determining how to proceed with the appointment of an evidence leader while the legal disputes continue.
The outcome could determine whether Madonsela returns to consideration or whether Parliament moves forward with another candidate.
For now, the central question remains whether Ramaphosa was legally entitled to object to the person Parliament’s committee had recommended to lead evidence against him.
The court’s eventual decision could have significant implications for the future of the impeachment inquiry, Parliament’s constitutional powers and the ongoing political fallout from the Phala Phala scandal.
Mainstream Media References
- IOL — “Phala Phala: Court bid says Ramaphosa had no right to block Madonsela”
Read the IOL report - SABC News — “Parly rescinds Madonsela’s recommendation for Impeachment Committee”
Read the SABC News report - SABC News — “Parliament legal team clears Madonsela despite Ramaphosa’s objection”
Read the SABC News report - SABC News — “Madonsela’s Section 89 Committee recommendation rescinding challenged”
Read the SABC News report
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