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The National Assembly’s section 89 impeachment committee has rescinded its decision to recommend advocate Thandazani Madonsela as evidence leader in its inquiry into President Cyril Ramaphosa’s conduct over the Phala Phala saga.The decision was taken on Tuesday after 18 members of the committee voted in favour of rescinding the recommendation, while nine voted against doing so.The committee’s earlier decision to recommend Madonsela for the role was taken on August 5. However, his appointment had not yet been finalised, as the committee only makes a recommendation; the formal appointment is made through parliament’s administrative processes.The reversal followed an objection from Ramaphosa, who raised concerns about Madonsela’s previous role as one of the president’s designated representatives on the Judicial Service Commission (JSC) and legal advice he had previously provided on matters regarding impeachment processes.Ramaphosa argued that there was a reasonable apprehension that Madonsela might harbour a grievance against him after he was replaced as the president’s designated representative on the JSC in 2022.He also raised concerns about Madonsela having previously provided legal advice to the ANC on matters connected to the section 89 impeachment process.Parliamentary legal adviser Michael Prince, who presented a legal opinion to the committee on Tuesday, said the information before parliament did not establish an actual conflict of interest.“There appears to be no evidence before the impeachment committee that demonstrates any personal animosity between the president and advocate Madonsela, nor is there any objective basis upon which such animosity can be inferred,” Prince said.Prince said Madonsela’s removal as a presidential appointee to the JSC did not, on its own, establish either an actual conflict of interest or a reasonable apprehension of bias.The legal opinion also noted that an evidence leader did not perform a decision-making or adjudicative role in an impeachment inquiry.“The evidence leader does not determine the facts, make final findings, vote on the recommendations or decide the outcome required,” Prince said.Rather, the evidence leader assists the committee by identifying, organising and presenting relevant evidence, while the committee retains responsibility for evaluating the evidence and making findings.However, Prince said the committee needed to reconsider information that emerged after its initial decision to recommend Madonsela.During the due diligence process, Madonsela disclosed that he had previously been briefed to provide legal opinions to what he described as a parliamentary “study group” on legal issues relating to impeachment processes.Read: EDITORIAL | Parliament has a chance to get Phala Phala rightHe said his involvement had been limited, that his advice had dealt with legal rather than factual issues, and that he had not received confidential information regarding the merits of the impeachment inquiry.The ANC subsequently informed parliament that the legal advice had, in fact, been provided to the party.Prince said this information had not been expressly before the committee when it voted to recommend Madonsela on August 5.“The information presently available does not establish an actual conflict of interest,” Prince said.“Nevertheless, 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.”He said this did not invalidate the committee’s earlier decision but justified the committee formally reconsidering whether the requirement that there be no real or perceived conflict of interest remained satisfied.The committee’s own criteria for appointing an evidence leader state that the candidate must not have a real or perceived conflict of interest regarding the matter.With the ANC and PA leading the call for the decision to be revisited, parties in the GNU argued that the circumstances created a perception that Madonsela could be biased against Ramaphosa.Opposition parties, however, accused the ANC of filibustering and pointed out that Madonsela’s recommendation had been approved by a majority of the committee on August 5, when the ANC abstained.Committee chair Makashule Gana said the committee had been presented with two options by parliamentary legal services: to confirm its earlier recommendation or to rescind it and reconsider the appointment of an evidence leader.Gana said the committee had chosen the latter option.The process to nominate an evidence leader has now been reopened, with political parties given until Friday to submit further names.Parliamentary legal services will also check whether candidates who had previously been nominated remain available to serve.Gana said the committee would meet next week to consider the nominations and seek to finalise a recommendation.He said the decision had been guided by the need to ensure procedural fairness and to protect the impeachment process against potential legal challenges.“If we do not adhere to the constitution and the rules and the law, we expose the process to further legal challenges,” Gana said.“It is therefore better to deal with a matter properly where it arises than to leave unresolved difficulties later.”The committee was established following a Constitutional Court ruling that set aside the National Assembly’s 2022 decision not to proceed with an impeachment inquiry following the section 89 independent panel’s report on Ramaphosa.The inquiry concerns Ramaphosa’s conduct following the theft of foreign currency from his Phala Phala farm in February 2020.The section 89 independent panel found that Ramaphosa had a case to answer in relation to possible serious violations of the constitution and the law.Ramaphosa is challenging the panel’s report in the Western Cape High Court, where his application is due to be heard from Wednesday to Friday.An interdict prevents the impeachment committee from proceeding with public hearings pending the determination of Ramaphosa’s review application.Gana said the committee had nevertheless continued with preparatory work, including developing its terms of reference and appointing an evidence leader, so that it would be ready to proceed once the court had ruled.He said the committee would not pre-empt the outcome of the court proceedings but needed to be prepared for whichever decision the court made.Business Day
