Phala Phala: Court bid says Ramaphosa had no right to block Madonsela - IOL

President Cyril Ramaphosa had no legal right to object to the advocate Parliament's impeachment committee had recommended to lead evidence against him, according to an urgent application filed in the Western Cape High Court.

The application seeks to overturn the committee's decision, taken last week, to withdraw its recommendation of Advocate Thandazani Madonsela SC as chief evidence leader.

The African Legal Professionals Association, or ALPA, filed the application on Tuesday, asking the court to declare the decision unconstitutional, unlawful and invalid.

The application is the second brought against the committee over the same decision, after the EFF filed its own urgent bid on Monday to have Madonsela reinstated.

ALPA’s court papers, seen by IOL, ask that any decision to call for new nominations or to select, recommend or appoint another evidence leader be set aside, and that the matter be returned to the committee.

The committee has been barred from holding public impeachment hearings since July, when Ramaphosa won an interim interdict against it while he challenges the Ngcobo report.

The report, compiled by a Section 89 panel chaired by former chief justice Sandile Ngcobo, found that Ramaphosa had a case to answer over the theft of about $580,000 in foreign currency from his Phala Phala game farm in Limpopo in February 2020.

Judgment in that challenge was reserved in the same court last Friday, before Judge President Nolwazi Mabindla-Boqwana, Judge Mark Sher and Judge Ncumisa Mayosi.

And though the interdict falls away only once judgment is delivered, the committee can still do preparatory work.

It is due to sit on Wednesday to decide whether to oppose the applications and to recommend a new evidence leader.

ALPA's application, meanwhile, is set down for next week Friday.

Ramaphosa is cited as the fifth respondent, alongside committee chairperson Makashule Gana, the National Assembly, Speaker Thoko Didiza, secretary to Parliament Xolile George and Madonsela.

Sthembiso Mbhele, chair of the association, said in the founding affidavit that Ramaphosa had claimed a power he does not have.

"The President's purported objection was then delivered that same day, wherein he purported to invoke a legal right to make objections to Parliament as to who may be appointed as chief evidence leader," Mbhele said.

"But as I will demonstrate, [Ramaphosa] has no such right in law."

Mbhele said the rules Ramaphosa relied on allowed him to participate in the inquiry and make submissions to it.

Mbhele said the rules did not give Ramaphosa the right to object to the committee’s choice of evidence leader, prevent the appointment from going ahead or demand that the committee reconsider its decision.

The committee recommended Madonsela on August 5 by nine votes to seven, with 11 abstentions, in a straight choice against advocate Kate Hofmeyr SC.

By August 18, Didiza had signed the authorisation for Madonsela’s appointment.

Gana said the only step left was for the State Attorney to formally instruct Madonsela to lead evidence.

Ramaphosa then objected, saying Madonsela might harbour a sense of grievance against him over his removal from the Judicial Service Commission (JSC) in 2022, and raised the legal advice the advocate had given on impeachment matters.

ANC secretary-general Fikile Mbalula also wrote to Didiza, confirming the party had been the client.

ALPA's application argued the committee already knew about the issues it later relied on to reverse its recommendation.

Senior parliamentary legal adviser Suanne Isaac had written to Madonsela on July 24, setting out the six requirements for the post and asking him to confirm that he met them.

One of those was that the evidence leader have no real or perceived conflict of interest.

"I have no conflict of interest in the matter," Madonsela said.

"However, I feel obliged to make the following disclosures."

Madonsela disclosed that Ramaphosa had designated him to the JSC in March 2020, a designation that ended in March 2022 when the president replaced his nominees.

On June 5, he said, he had taken a brief from Mongezi Ntanga Attorneys to supervise a junior advocate writing ad hoc opinions on impeachment matters.

He was released from the brief on July 5, before the committee ever considered his name.

Isaac read the whole disclosure to MPs before the August 5 vote and put the question to them directly.

She said it was "for the committee to consider as to whether that is an issue ... that will exclude him or not".

ANC MP Cameron Dugmore, who held his party's list at that vote, said the matters Madonsela had declared "clearly do not ... breach ... the code of conduct".

Parliament's own legal services office advised in writing at about a fortnight ago that there was no actual conflict of interest, no evidence of animosity between the president and Madonsela, no sign that he held confidential information and no objection from his former client, the ANC.

It also recorded that an evidence leader determines no facts, makes no findings, decides no outcome and is not a prosecutor.

The committee withdrew the recommendation six days later by 18 votes to nine.

Mbhele said MPs relied on "assertions of grievance, concealment, recklessness, undisclosed mandates and political association which were not remotely supported by facts".

Those claims "were not put to Advocate Madonsela SC", he said, and contradicted both the legal opinion and the committee's own record.

A member said immediately after the vote that Madonsela had been made "the second victim and that is sad for black practitioners", and called it "unwarranted".

Ramaphosa never objected to Hofmeyr, the DA's nominee.