Cape Town - The damning Section 89 independent panel report, which found that President Cyril Ramaphosa may have committed serious violations of the Constitution, is not reviewable.
Even if it was, Ramaphosa had not made out a case for this relief.
Moreover, the Constitutional Court, which Ramaphosa has approached to have the report reviewed and set aside should not be the first and last instance on an important question not subjected to judicial scrutiny by other court.
This is the crux of ATM leader Vuyo Zungula’s affidavit filed in the Constitutional Court to oppose Ramaphosa’s application to challenge the report on the Farmgate scandal.
Ramaphosa filed court papers on December 5 following the Section 89 report conclusion that the information placed before the panel disclosed, prima facie, that Ramaphosa may have committed serious violation of the law and the constitution.
In his founding affidavit, Ramaphosa said the panel misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges against him.
He asked for an order that declared the Constitutional Court had exclusive jurisdiction to hear and determine the application.
Ramaphosa also asked for an order granting him leave to approach the court directly as well as declare steps taken by the National Assembly following the panel’s report unlawful and invalid.
In his court papers filed this week, Zungula noted that the president contended that the application concerned his conduct and whether he and Parliament failed to fulfil a constitutional obligation.
“But this application is not about whether the president or Parliament failed to fulfil a constitutional obligation. Instead, it is about whether the report of the independent panel is capable of being reviewed and set aside, and if it is, whether it falls to be reviewable and set aside.”
He said the court was not called upon to pronounce on the conduct of the president and whether it was inconsistent with the constitution.
“It is also not called upon to determine whether Parliament has failed to discharge an obligation imposed on it by the constitution,” he said.
Zungula also said Ramaphosa had not satisfied the test for direct access to the Constitutional Court.
He noted that the president asked for direct access to the court because there was “urgency in resolving the issues of legality of the recommendation and findings of the panel”.
According to Zungula, Ramaphosa did not bring the application on an urgent basis.
“The Constitutional Court should not be the court of first and last instance on an important question that has not been the subject of judicial scrutiny by other courts.
“This court should have the benefit of the high court and the Supreme Court of Appeal’s reasoning on whether the reports of the independent panel are reviewable and how the rules of Parliament relating to impeachment should be interpreted.”
Zungula also said the application did not present narrow questions of law other than factual analysis and findings of the panel.
He charged that the report of the panel was not reviewable as a matter of principle. The court held that investigation reports that are merely recommendatory in nature are not reviewable because they are not final decisions capable of creating direct consequence.
“Parliament’s rules on impeachment are clear in respect of the status of the independent panel report. It is neither final nor binding on the Assembly.”
Zungula also said the relief sought in the application impeded Parliament from exercising its constitutional function. “The president seeks to pre-empt Parliament by asking this court to reject the report.
That he may not do. The work of the Assembly in holding the president accountable should not be impaired before the process is finalised.
To do so would undermine the separation of powers and Parliament’s constitutional duty to hold the president to account.”
He argued that the apex court should not be seized with the application, whether by way of exclusive jurisdiction or by direct access.
“Even were the court to entertain the matter, it should not uphold the application for two separate and self-standing reasons – the report is not reviewable. And even if it is reviewable, the president has not made out a case for this relief,” he said.
Cape Times