The Freedom Front Plus (VF Plus) welcomes today’s Constitutional Court judgment on Phala Phala, but is concerned that the Court has, to some extent, eroded the separation of powers by prescribing to Parliament how it should manage its internal processes.
The Court ruled that the Independent Panel’s report, which found a prima facie case of serious violation of the Constitution or the law by President Cyril Ramaphosa, must be referred to a parliamentary committee for further investigation.
The existing rule, which requires the National Assembly (NA) to first vote on whether such a report should be referred to a committee, is consequently deemed unconstitutional.
The parliamentary vote in December 2022 (in which the ANC majority voted – with 214 against 148 – not to investigate the matter) is regarded as invalid in respect of this case.
According to the Freedom Front Plus, the Constitutional Court’s ruling implies that the entire Section 89 process (the removal of the President) should be simplified.
This means that the independent, expert Section 89 panel, which must first investigate whether a prima facie case exists, becomes redundant or superfluous.
In future, a motion for removal could proceed directly to a full parliamentary inquiry committee without first being assessed by a preliminary Section 89 panel and without the National Assembly first having to vote on whether such a panel’s report should be investigated.
The Court has, therefore, not only ruled on what must happen — namely that the Phala Phala report must be investigated — but has also prescribed how the process should unfold in future.
This makes the Freedom Front Plus uncomfortable. The Court is encroaching too far into the domain of the legislature (Parliament) by prescribing procedure. It is in the interest of democracy that the legislature is able to act independently and without interference.
