/ 20 January 2025

Politics will continue to play out in courts in 2025

Phalaphala
Cyril Ramaphosa’s farm, Phala Phala. (Leon Sadiki)

Politics will occupy the courts again in 2025, with rulings due on the uMkhonto weSizwe (MK) party’s renewed challenge to last year’s national election results and the Economic Freedom Fighters’ (EFF) bid to see President Cyril Ramaphosa impeached.

At the end of November, the constitutional court reserved judgment on the party’s application to overturn the National Assembly’s vote to reject the Ngcobo panel’s report on the Phala Phala scandal.

The section 89 panel, chaired by retired chief justice Sandile Ngcobo, recommended that Ramaphosa face an impeachment inquiry to answer to charges of breaching the law in relation to the theft of foreign currency — $580 000, according to the president — from his private game farm.

The report, voted down by 214 to 148 votes, raised doubt about the president’s explanation as to where the money came from and why staff stashed it in a sofa. In the court hearing, Justice Owen Rogers returned to the plausibility of the president’s version about cash from a cattle sale left unbanked.

But the case has wider implications than Ramaphosa’s immediate political future. The EFF also wants the court to declare unconstitutional rule 129 of parliament’s rules on impeachment, which were applied here for the first time after their adoption in 2018 to regulate the removal of a sitting president.

That particular rule allows the National Assembly the discretion to decide whether to proceed to impeach the president, after considering the panel’s findings. The EFF argued that it should have none at this stage of the process and wants the court to order the chamber to start impeachment proceedings. 

Substitution is somewhere the court will not lightly — or likely — go but the ruling might be instructive as to the extent to which the legal findings of a section 89 panel can be trumped by the politics of the day. 

It could also clarify the mandate of panels of this kind as the president’s contention, which was reiterated at length in the November pleadings, has been that it misread its brief to mean that prima facie evidence, rather than sufficient evidence, was grounds for finding that he had a case to answer.

Parliament’s prerogatives and constitutional responsibilities are also at issue in Freedom Under Law’s application before the Western Cape high court to set aside the National Assembly’s decision to appoint the impeached former judge president of the division, John Hlophe, to the Judicial Service Commission (JSC).

The speaker of the house, Thoko Didiza, justified the decision to respect an unwritten rule to endorse whoever a political party nominated to serve on the commission in the absence of an explicit rule against naming a disgraced judge.

ANC chief whip Mdumiseni Ntuli adopted that same position from the house floor, submitting that the National Assembly’s rules were silent on the improbable scenario of considering a candidate it had recently impeached for breaching the judicial code of conduct.

Hlophe was nominated just four months after he was removed from the bench, during which time he resurfaced as the parliamentary leader of the MK party.

Freedom Under Law’s counsel told the court that rubber-stamping his nomination for the commission was an irrational exercise of public power and a woeful misreading of the constitution because section 178(1)(h) gave it a discretion it had failed to exercise in this case.

“In fact, it appeared not to have realised that it had a discretion at all,” advocate Wim Trengove argued for Freedom Under Law.

Trengove said this discretion implied the responsibility of considering whether the candidate was fit and proper to participate in the appointment of judges and would help to instil public confidence in the integrity of the judiciary.

Instead, he submitted, the chamber abdicated this power it held as collective to a minority party by believing its hands were tied in opposing the MK party’s nomination of Hlophe. 

Hlophe’s appointment was similarly challenged by the Democratic Alliance, who further asked the court for an interim interdict barring Hlophe from taking up his seat at the JSC when it interviewed candidates for several divisions, and his former post, in October.

While the ruling on the main application remains pending, the interim interdict was granted and in December the court denied Hlophe and the MK party leave to appeal the order. He has resigned from the JSC, but this does not affect part B of the case as the conduct impugned was not his or that of his party but of the National Assembly. 

The MK party in October reinstated its fraught legal challenge to the outcome of the May 2024 national elections where it won 14.5% of the vote, spelling the end of the electoral majority the ANC had enjoyed for three decades. 

It first filed papers in June, in breathless fashion, claiming that, had the vote not been rigged, it would “in all likelihood” have won the elections because irregularities cost it nine million votes.

It asked the constitutional court to set aside the results, to order Ramaphosa to call fresh elections within 90 days and to interdict the National Assembly from swearing in MPs and electing a new president. 

Though it claimed to have evidence of irregularities, it included none in its founding papers. The court dismissed the application, saying it must fail on its merits, and faulted the party for not adducing facts to establish a prima facie case.

The MK party then turned to the electoral court, which in October awarded punitive damages against it, in favour of the Electoral Commission of South Africa (IEC) for abandoning its application. In early July, it filed notice to withdraw the challenge, without seeking leave from the respondents or the court and without tendering costs to the IEC and the chief electoral officer. 

Its counsel, in correspondence with their counterparts for the IEC, cast the withdrawal as “a pause in the litigation to resolve procedural issues”. 

The IEC responded by demanding a hearing date to allow the court to deliver a finding, and accused Jacob Zuma’s MK party of “an abusive and dilatory litigation strategy”.

The court concluded that it had deviated from standard litigation practice, but stopped short of agreeing that it was an abuse or granting an order, as requested by the IEC, barring the party from launching similar proceedings in future without first seeking leave from the court.

The party had filed a fresh application three weeks earlier, in which its national chairperson, Nathi Nhleko, alleged that the election process had been marred by widespread irregularities, the nature of which was “so egregious [as] to vitiate the entire elections”.

The MK party is relying on a report by Vusi Mhlongo, the former head of the technology and innovation department at the Moses Kotane Research Institute, who submitted that there was clear evidence of a lack of integrity in the IEC’s information and communication technology system, including grave inconsistencies in tens of thousands of voting district reports.

In his answering affidavit, chief electoral officer Sy Mamabolo dismissed this particular complaint about the reports as “trumped up”. He said Mhlongo lacked the expertise — and the objectivity — to pronounce on the integrity of the IEC system and his report was littered with errors in logic.

Mhlongo had further disqualified himself by failing to inspect the national and provincial elections results system, he added.

In a responding affidavit, the party accused the IEC of trying to discredit its expert witness rather than responding directly to the points Mhlongo had raised, possibly for lack of understanding of information technology.

No hearing date has been set yet. In the meanwhile, the Moses Kotane institute and Mhlongo secured a separation agreement after it had brought disciplinary charges against him for failing to declare that he was acting as a consultant for the MK party and expressing views that did not promote the reputation or goodwill of the institute.

NHI legal challenges 

In the coming year, the courts will hear three legal challenges to the National Health Insurance (NHI) Act, which was signed by Ramaphosa a fortnight before the elections. The Board of Health Care Funders, labour union Solidarity and the SA Private Practitioners Forum have asked the courts to review his decision. 

The Board of Health Care Funders has argued in papers filed at the high court that, because of the number of submissions questioning its constitutionality, he should have referred it back to the National Assembly for reconsideration.

In papers filed late last year, the president countered that signing a Bill or sending it back for reconsideration was his prerogative and submitted that the applicants should have approached the apex court instead as it had exclusive jurisdiction in the matter.

Ramaphosa sent the controversial Copyright Amendment Bill, and by extension the Performers’ Protection Amendment Bill, back to parliament in 2020. In October, he referred the Bills to the constitutional court for certification because, his office said, his concerns regarding potentially unconstitutional provisions were “not fully accommodated by parliament” and he held numerous reservations. 

These include that the restrictions on copyright imposed by section 6 to 8 of the Copyright Amendment Bill might constitute retrospective and arbitrary deprivations of property in violation of section 25(1) of the Constitution. These sections confer discretionary powers on the minister which the president believes could constitute an impermissible delegation of legislative authority.

One Reply to “Politics will continue to play out in courts in 2025”

  1. A profundidade da sua análise me fez reconsiderar alguns pontos de vista que eu tinha sobre o tema.