Only an interdict can stand in National Assembly’s way, parliament advised on Phala Phala

President Cyril Ramaphosa’s court application to review the section 89 panel’s report does not automatically and absolutely bar the National Assembly from proceeding with a section 89 inquiry and referring the matter to an impeachment committee.

Only an interdict would stop the process.

This is advice by parliament’s chief legal counsel, Zuraya Adhikarie, to National Assembly speaker Nosiviwe Mapisa-Nqakula, seen by SowetanLIVE's sister publication TimesLIVE.

Adhikarie said the general principle in South African law is that executive and administrative conduct stands until it is successfully reviewed and set aside.

“Unless there is an interdict, the National Assembly may proceed. This is known as the 'Oudekraal' principle and has been approved by the Supreme Court of Appeals and the Constitutional Court,” she said.

There had been uncertainty among MPs about the impact of Ramaphosa’s review application on parliament proceeding with the matter. A special session of the National Assembly has been scheduled for next Tuesday to debate and vote on the report.

Adhikarie told Mapisa-Nqakula the mere launch of court proceedings that may set aside or restrain a conduct does not make it impermissible to go ahead with it.

“It needs to be stated categorically that no aspect of our law requires of any entity or person to desist from implementing an apparently lawful decision simply because an application that might even be dismissed has been launched to hopefully stall that implementation.

“Any decision to that effect lacks a sound jurisprudential basis and is not part of our law. It is a restraining order itself, as opposed to the sheer hope or fear of one being granted, that can in law restrain. To suggest otherwise reduces the actual grant of an interdict to a superfluity.

“Thus, if the president wants to formally restrain the National Assembly from proceeding, he would need to obtain an interim interdict to this effect,” she said.

She also argued the sub judice rule in assembly’s rule book (rule 89) does not preclude the assembly from considering the matter. It precludes it from reflecting on the merits, which is meant to prevent the National Assembly from influencing or affecting the outcome of the matter already pending before court.

Rule 89 reads: “No member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending. However, the current matter is distinguishable as it was initiated in terms of the National Assembly rules and was serving before it when the president launched his review application.

“It is therefore our view seems that the National Assembly rule 89 does not bar the assembly from proceeding,” she said.

The rule neither bars the assembly from exercising its constitutional mandate to hold the president to account in terms of section 89 of the constitution and assembly rules regarding the removal of the president.

“Furthermore, in terms of National Assembly rule 129I, once the panel has reported, the speaker is obliged to schedule the report for consideration by the National Assembly, with due urgency given the programme of the assembly.”

Adhikarie said while Ramaphosa’s pending application implicates the sub judice rule and creates a practical challenge of managing the debate, it cannot be an absolute bar to parliament deciding whether to proceed with a section 89 inquiry and whether to refer the matter to an impeachment committee.

She said it is permissible for the assembly to consider the president’s review application in determining a way forward. In this regard, it would be rational for the National Assembly, in its discretion, to resolve that:

• a section 89 process should go ahead; or
• a section 89 process should not proceed; or
• a decision on the section 89 process should be deferred until the pending application has been determined.

In a report published last Wednesday, the panel concluded that, from the information it received, there was a prima facie case that Ramaphosa may have committed serious violations of the constitution and the law.

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