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Parliament has received legal opinion indicating that President Cyril Ramaphosa’s decision to take the findings of the Ngcobo panel on review does not bar the National Assembly from voting on its recommendation that he face an impeachment inquiry.
The speaker called for an opinion as to whether the sub judice rule would compel the chamber to postpone the debate, scheduled for Tuesday next week, pending the decision of the constitutional court.
The advice it received, from chief parliamentary legal advisor Zuraya Adhikari, was that the matter did implicate the sub judice rule but not to such an extent that a postponement was warranted.
This would only be the case if the president had, in parallel, asked the court for an interdict barring the legislature from proceeding with the debate, where a simple majority is required to adopt the recommendation of the panel.
“We advise that the launch of the president’s review application, unless an interdict were obtained, would not preclude the National Assembly from considering whether to proceed with a section 89 enquiry and refer the matter to an impeachment committee,” Adhikari wrote.
The sub judice rule has limited application in South African law. It evolved as part of common law and applies only where there is a real risk that a pronouncement on a matter that is before the courts, or publication of such, would impede the administration of justice.
It is, however, frequently incorrectly cited as a reason for not disclosing information relating to politically sensitive matters that might in some way be subject to investigation or a court process.
In terms of parliamentary process, rule 89 of the National Assembly holds that: “No member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.”
Adhikari said this was a limitation that the legislature had imposed on itself and not a rule of law.
It meant that where a matter under discussion relates to a pending court case, members are restricted from commenting on the merit of the matter.
“In other words, it is to be interpreted narrowly and not as a complete bar to the National Assembly from processing a matter legitimately before it,” she said.
“This does however create a practical challenge where, for the question to be decided by the National Assembly, it is difficult to avoid reflecting on the merits of a case.”
This was weighed against the principle that executive and administrative conduct stands and is effective unless and until it is successfully reviewed and set aside, Adhikari added.
“It means that the panel’s report stands and is effective unless it is set aside.”
Her conclusion was that, unless the president obtained an interdict, it was within parliament’s discretion to decide to proceed or to postpone the debate pending the outcome of the process.
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