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Parliament’s legal advisers have advised the section 89 impeachment committee to formally reconsider the appointment of advocate Thandazani Madonsela as its chief evidence leader after new information emerged that he had previously provided legal advice to the ANC on matters linked to the impeachment process.A legal opinion dated August 26 found there was no evidence of an actual conflict of interest involving Madonsela, or sufficient objective evidence to support President Cyril Ramaphosa’s claim that the advocate could be biased against him because he had previously been removed as a presidential appointee to the Judicial Service Commission (JSC).However, parliament’s constitutional and legal services office said the committee could not simply ignore the subsequent disclosure that Madonsela’s previous legal work on impeachment matters had been performed for the ANC.The committee had voted to recommend Madonsela on August 5, with nine members supporting his appointment, seven opposing it and 11 abstaining. At the time, members were not expressly told the “parliamentary study group” for which Madonsela said he had provided legal advice was the ANC.The legal advisers said this new information could have a bearing on whether Madonsela meets the committee’s own requirement that an evidence leader must have neither a real or perceived conflict of interest.“The subsequent disclosure that the advice was rendered to the ANC constitutes new information that was not expressly before the impeachment committee when it reached its recommendation,” the opinion stated.The ANC had disclosed the relationship in a letter from secretary-general Fikile Mbalula to the speaker on August 8, saying Madonsela had previously been briefed to provide legal advice to the party on matters relating to the Section 89 parliamentary rules and processes.The subsequent disclosure that the advice was rendered to the ANC constitutes new information that was not expressly before the impeachment committee when it reached its recommendation.The ANC stressed the disclosure was not an objection to Madonsela’s appointment and did not question his integrity or independence.Madonsela had himself disclosed during the committee’s due diligence process that he had provided two legal opinions after being briefed by attorneys acting for what he described as a parliamentary study group.He said his role had been limited to overseeing draft opinions prepared by another advocate and he had not been privy to the factual merits of the impeachment inquiry.He was released from the brief on July 5 because of his other commitments.The legal advisers found no indication that Madonsela had received confidential information that would compromise his ability to perform the role independently. However, they said the issue was broader than whether there was an actual conflict.The committee’s directive expressly requires an evidence leader to have no “real or perceived conflict of interest”, meaning the committee must consider whether a reasonable and informed observer could perceive a conflict simply because Madonsela had previously advised the ANC on matters connected to the section 89 process.The opinion said the committee’s original decision to recommend Madonsela was valid and no challenge had been raised to the procedure through which the vote was taken.Ramaphosa had argued Madonsela might harbour a grievance after the president replaced him as a presidential designate on the JSCIt also rejected the president’s argument that Madonsela’s previous JSC appointment created a reasonable apprehension of bias.Ramaphosa had argued Madonsela might harbour a grievance after the president replaced him as a presidential designate on the JSC.The legal advisers said there was no evidence of personal animosity between the two men, and that the fact that someone had ceased serving in an appointment made by the president did not, on its own, establish either an actual conflict or a reasonable apprehension of bias.The opinion also stressed Madonsela’s role as evidence leader would not be that of an adjudicator or prosecutor. He would assist the committee by identifying, organising and presenting relevant evidence, while the committee itself would remain responsible for evaluating that evidence, making findings and deciding the outcome of the inquiry.Despite finding no automatic disqualification, parliament’s lawyers said the committee now had to apply its mind to the newly disclosed ANC connection before concluding the appointment process.They advised the committee could either confirm Madonsela’s appointment and record its reasons for finding that no real or perceived conflict existed, or rescind its recommendation and reconsider the appointment of another chief evidence leader.The legal advisers said doing so was necessary to protect the procedural fairness and public credibility of the Section 89 process and to guard against possible legal challenges to the inquiry.TimesLIVE
