In Economic Freedom Fighters and Another v Speaker of the National Assembly and Others, the Constitutional Court held that rule 129I of the rules of the National Assembly was inconsistent with the Constitution of the Republic of South Africa, 1996, and the court accordingly declared the rule unconstitutional and invalid.

Read the case here:

https://www.saflii.org/za/cases/ZACC/2026/17.html

Not to refer to Impeachment Committee

The matter arose following the National Assembly’s vote of 13 December 2022 not to refer the Independent Panel’s report to an Impeachment Committee. In addition to declaring rule 129I unconstitutional and invalid, the Constitutional Court subsequently directed that the Independent Panel’s report be referred to an Impeachment Committee in accordance with the rules of the National Assembly.

The applicants argued that rule 129I, prior to being declared invalid and unconstitutional, enabled abuse by a majority in the National Assembly, in that a political party holding the majority of seats could use its numerical strength to prevent the process from progressing to the next stage. In the present instance, this meant that the majority could halt impeachment proceedings before the matter reached the Impeachment Committee.  This was held to undermine the National Assembly’s constitutional obligation to hold the President accountable.

The respondents, which also included the President, interpreted the rule as granting the National Assembly a discretion to decide whether to refer the Independent Panel’s Report to an Impeachment Committee, even where the panel had found prima facie evidence of impeachable conduct. On this interpretation, the National Assembly could effectively terminate the impeachment process through a political vote. Before the declaration, the rule read as follows:

  • Once the panel has reported, the Speaker must schedule the report for consideration by the Assembly, with due urgency, given the programme of the Assembly;
  • The President must be informed of the scheduling and any decision taken on the report;
  • In the event that the Assembly resolves that a section 89(1) enquiry be proceeded with, the matter must be referred to the Impeachment Committee established by this rule for that purpose.

National Assembly can no longer vote on Independent’s Panel report before Impeachment Committee

The rule, prior to being set aside, conferred powers to the National Assembly to resolve on panel report and in the event the National Assembly, resolved that an impeachment enquiry be proceeded with, then the matter would be referred to an impeachment committee. The effect of the judgment is that the National Assembly can no longer vote on an independent panel’s report before the impeachment committee has had an opportunity to consider the matter and make its own determination, and confers authority to the impeachment panel to determine whether sufficient evidence exists for an impeachment, whereafter depending on the outcome, an impeachment motion may be tabled in the National Assembly. To remedy the defect in the rule, the Constitutional Court struck out and inserted new words for the rule, to read as follows:

  • Once the panel has reported the Speaker must inform the Assembly of the report.
  • The President must be provided with a copy of the report forthwith.
  • In the event the panel concludes sufficient evidence exists as contemplated in Rule 129G, the matter must be referred to the Impeachment Committee established by this rule (or by the National Assembly Rules) for that purpose.

The Independent Panel’s report to the Impeachment Committee was intended solely to determine whether sufficient evidence existed to justify the commencement of impeachment proceedings against the President of the Republic of South Africa. The panel was not tasked with determining the President’s guilt or innocence in relation to the alleged theft of foreign currency from President Ramaphosa’s private game farm, or the circumstances surrounding the theft. Any determination of criminal liability falls within the ambit of separate criminal proceedings, conducted in terms of the Criminal Procedure Act 51 of 1977.

No adverse findings against President

It is important to note that the Constitutional Court did not make any adverse findings against President Ramaphosa. The court’s ruling was confined to the constitutionality of rule 129I and the process governing the referral of the Independent Panel’s report to an Impeachment Committee.

Following the Constitutional Court’s ruling, the Independent Panel’s report was referred to an Impeachment Committee, which is tasked with determining whether sufficient evidence exists to justify impeachment proceedings against the President. Depending on the findings of the Impeachment Committee, impeachment proceedings against the President may follow, in which event section 89(1) of the Constitution will apply.

In terms of section 89(1), a resolution by the National Assembly to remove the President from office must be adopted with the support of at least a two-thirds majority of its members. Accordingly, of the 400 members of the National Assembly, at least 267 members would be required to vote in favour of the President’s impeachment.

President can still review proceedings

The President nevertheless retains the right to institute review proceedings in respect of the Independent Panel’s report in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), should he contend that the panel acted unlawfully, irrationally, procedurally unfairly, or exceeded its powers in the execution of its mandate.

At this stage, however, any review application would fall outside the 180-day period prescribed in section 7(1) of the PAJA. That period may nevertheless be extended on application in terms of section 9(2) of PAJA, where the interests of justice so require. It should be borne in mind that, although the Independent Panel’s report was finalised on 30 November 2022, its implementation was effectively halted when the National Assembly voted not to refer the report to an Impeachment Committee. The report, however, regained legal consequence following the Constitutional Court’s judgment, which confirmed that it remains valid unless and until it is set aside on judicial review.

The impeachment of a President in South Africa remains unprecedented. Accordingly, the Constitutional Court’s judgment constitutes an important precedent in the development of South Africa’s constitutional jurisprudence relating to impeachment proceedings, executive accountability, and the separation of powers.  The Constitutional Court correctly ruled against the relevant National Assembly rule, thereby regulating the conduct of Parliament. By striking out certain wording in the rule and inserting alternative wording, the court preserved the purpose and intention behind the impeachment provisions. The intention underlying the establishment of these rules was to ensure the existence of an impeachment process that could not be circumvented or frustrated by a parliamentary majority

Conclusion

Following the Constitutional Court’s judgment, Parliament of the Republic of South Africa is obligated to proceed with the impeachment proceedings against the President. This necessarily means that the impeachment process must continue until an outcome is reached. Consequently, it would be inappropriate for a parallel process, such as a motion of no confidence against the President, to proceed simultaneously, given that the court has already prescribed that the impeachment process must be followed.

 

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