The search is on for a new chief evidence leader for the Section 89 impeachment inquiry after President Cyril Ramaphosa successfully pushed for the committee to set aside the nomination of Advocate Thandazani Griffiths Madonsela SC.
Madonsela's nomination for the position was set aside by majority vote during a committee meeting on Tuesday, September 1. The meeting was convened to consider a legal opinion from Parliament’s Legal Services Office on the president’s objections.
The advice, prepared by Senior Parliamentary Legal Adviser Sueanne S Isaac and Parliamentary Legal Adviser Michael Prince, found that the information currently available did not establish that Madonsela had an actual conflict of interest that would automatically disqualify him from serving as chief evidence leader.
It also found insufficient objective evidence to support a reasonable apprehension that his previous service as a presidential appointee to the Judicial Service Commission (JSC) would impair his independence or impartiality.
However, the legal advisers noted that the subsequent disclosure that Madonsela had previously advised the ANC on matters connected to the Section 89 impeachment process constituted information that had not been expressly before the committee when it voted to recommend his appointment.
Despite objections from several opposition parties during the debate, Madonsela's nomination was set aside by majority vote, with the ANC, which had previously abstained from the vote on his nomination, supporting the decision.
In a letter sent to the Section 89 Committee, Ramaphosa had argued that Madonsela had a “real or perceived conflict of interest”.
The president cited his decision to remove Madonsela as his JSC appointee shortly after the 2022 interviews for chief justice. Ramaphosa argued that this created “a reasonable apprehension” that Madonsela may harbour a grievance against him and potentially act on it.
MPs were divided on the move. EFF MP Omphile Maotwe said there was no basis for the committee to reconsider its earlier decision to nominate Madonsela.
“There is no rule in the National Assembly that says a decision taken can be rescinded on the very same material information you had before taking that decision, otherwise we will just be going in circles all the time,” she said.
ATM MP Vuyo Zungula said the principles applied in previous parliamentary impeachment proceedings appeared to be changing because the current process involved the president.
“The challenge is we have been here before in the Section 194 process, both inside and outside Parliament. What is strange is that the principles established in the Section 194 process for the impeachment of a head of a Chapter 9 institution are still at play.
“However, what we are finding both in Parliament and the courts, because we are dealing with the president, people are manipulating. In the bias or conflict of interest, what I am picking up is we are dealing with mindless contradiction in that the president will argue that because he removed Advocate Madonsela from the JSC he will be biased against him.
“The ANC, even if they are not saying it, their contention is that because Advocate Madonsela supervised a legal opinion that was prepared for them, he should be viewed as someone who will be biased for the ANC.
“How can one person on one side be perceived to be acting against the president of the country and ANC, but on the other side, because he supervised an opinion for the same ANC, he will be biased for it?” he said.
FF+ MP Wouter Wessels said he had raised concerns at the committee’s previous meeting that all the relevant information had not been before members when they made their original decision.
“I said at our last meeting I doubted that the full details of these facts were known to this committee when the decision was taken. The legal opinion does confirm that they were not.
“The issue here is with regard to perceived bias, not actual bias. The arguments put forward that the evidence leader is not an adjudicator or judge in this matter are irrelevant because we know that in practice, in these types of parliamentary proceedings, the evidence leader plays a fundamental role in framing and presenting the evidence and can steer the proceedings in a palpable way,” he said.
MK Party MP Dr John Hlophe said the ANC could not distance itself from the presidency when it suited the party politically.
“Let us remind ourselves there is one ANC in this country, and the leader of that ANC is the head of state, President Ramaphosa. It therefore does not make sense for the ANC, when it suits them, to say we did not know what is going on in the presidency and vice versa.
“When Advocate Madonsela was appointed to serve on the JSC, the ANC knew about that. When he was subsequently removed, he was not fired, because the JSC was reconfigured. He was not the only one removed and replaced,” he said.
The parties have until Friday to submit new names for the position.
ntsikelelo.qoyo@nationalmg.co.za