Parliament's Impeachment Committee is facing yet another court challenge - this time over the withdrawal of its nomination of Advocate Thandazani Griffiths Madonsela SC as its evidence leader.
The committee was previously taken to court by President Cyril Ramaphosa who secured an interim interdict preventing the committee from hearing evidence until his review application in respect of the Section 89 panel report into the Phala Phala matter is decided.
The review case was argued last week in the Western Cape High Court and judgment was reserved.
Now the committee is going to court to oppose an application by the EFF as well as an application brought by the African Legal Professionals Association (ALPA) in respect of its decision to rescind the nomination of Madonsela as its evidence leader.
The committee rescinded Madonsela’s nomination after Ramaphosa wrote to it, arguing that the senior advocate had a “real or perceived conflict of interest”.
The president cited his decision to remove Madonsela as a Judicial Service Committee 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.
It also came to light that Madonsela had previously advised the ANC on matters connected to the Section 89 impeachment process.
Last Friday, the EFF filed an urgent application with the court, arguing that the decision regarding Madonsela's nomination was unlawful and irrational.
Committee chairperson Makashule Gana said on Wednesday, when the committee convened, that they were made aware of an application by ALPA in addition to the EFF case.
After a lengthy debate, the committee voted 19 to nine in favour of opposing the applications.
During the debate, ActionSA MP Athol Trollip said what was manifesting in the committee was “GNU (Government of National Unity) majoritarianism”.
“What we see here is GNU majoritarianism manifesting itself in protectionism and it's showing its true colours. Initially, the ANC chose not to vote in the election of the evidence leader. And then they started clutching at straws at the behest of their president and then wanted to use majoritarianism. When it suited them, they chose not to use their vote; when it suited them, then they wanted to use the GNU vote to get a majority to protect the president.
“What we are doing is second-guessing ourselves as a committee. We spent the whole committee last week discussing whether Advocate Madonsela was compromised or not after having been given legal advice. What we are doing is second-guessing ourselves and the impeachment committee, which casts a pall on the committee’s commitment to find the truth of the Phala Phala matter,” he said.
ATM MP Vuyo Zungula said the committee must be able to make rational decisions.
“The fact that it is part of the rules that the committee takes decisions based on the majority does not mean that when the committee takes irrational decisions, those decisions will stand the legal test. There have been many instances where Parliament or committees have taken irrational and unconstitutional decisions, and they have been overturned. The basis of this application is exactly that, that it took an irrational decision,” he said.
EFF MP Omphile Maotwe said: “This committee took a decision and as Parliament we decided to recommend the appointment of Advocate Madonsela. That decision was taken through our own processes by our own mandate as the legislature exercises its constitutional authority. That decision was reversed not because new facts emerged, a new principle of reconsideration, but at the insistence of the executive. And that is irrational.
“It should worry every member of this House when we change a decision we have made simply because the executive says so. We are no longer a legislature but an extension of the presidency. If we do not challenge this matter, we allow a dangerous precedent,” she said.
ANC MP Cameron Dugmore said the committee had acted fairly and rationally to rescind the recommendation.
“When we met on the first of September, we had the benefit of a legal opinion. As we are all aware, that opinion spelt out a set of requirements for an evidence leader, including the last one, which is that the evidence leader must not have any real or perceived bias in respect of the matter.
“That opinion went on to give two options: either to confirm Advocate Madonsela’s nomination or determine that the newly disclosed information is sufficiently significant to create a perception of conflict which warrants rescinding the recommendation.
“The committee, by a majority vote, chose [to rescind]. It’s clear that having taken that decision, we should oppose the litigation,” he said.
ntsikelelo.qoyo@nationalmg.co.za