Ramaphosa and impeachment: What now? - Koos Malan

Key topics:ConCourt rules Parliament mishandled 2022 impeachment processRamaphosa seeks judicial review, delaying possible proceedingsDebate over ANC strategy and “Stalingrad” legal tactics intensifies.By Koos Malan*.Koos Malan writes on what faces President Cyril Ramaphosa following the ConCourt decision on a possible impeachment..So protracted was the delay in the Phala Phala ruling that Chief Justice Mandisa Maya felt compelled to offer an apology. But when the Constitutional Court's ruling was at last delivered on 8 May 2026, the delay issue was almost instantly forgotten, because the stinging blow the ruling inflicted on President Cyril Ramaphosa and the already battered African National Congress (ANC) seized all the attention.Indeed, the judgement as it stands may disrupt the multiparty government as we now know it.The majority of the justices (seven to four) in three separate judgements ruled that the National Assembly acted unconstitutionally on 13 December 2022. It failed to follow the correct procedure with a view to holding the president accountable in the context of possible impeachment under section 89 of the Constitution.The section provides that the National Assembly, with the support of at least two-thirds of its members, may remove the president from office if he has seriously violated the Constitution or the law, is guilty of serious misconduct, or is unable to fulfil the functions of his office.The procedure for impeachment is regulated by rule 129 of the Rules of the National Assembly, more specifically rule 129I. The rule in question is itself the product of a prior court ruling ordering the National Assembly to adopt rules regulating impeachment proceedings, as well as motions of no confidence (a very different procedure).Impeachment proceedings under these rules entail that after an impeachment motion has been initiated, a legal expert panel must determine whether there is sufficient evidence placing the impugned conduct of the president within the definition of any of the mentioned grounds for removal under section 89.If so, the issue escalates to the National Assembly. Two bodies are then seized with the matter: an Impeachment Committee of the National Assembly and then the plenary of the National Assembly..Impeachment Committee.The Committee represents all political parties in the National Assembly (on 13 May, Speaker Thoko Didiza announced that it would consist of 31 MPs from among the ranks of all parties represented in the National Assembly).During the committee’s proceedings, the president may be questioned. He will no doubt come under heavy fire. Opposition members will go out of their way to pillory the president. They will harass him with embarrassing interrogation, humiliate him, make him out to be a criminal, and at the same time, of course, want to harm his party.The committee will finally reach a conclusion. Most likely, it will be divided, with the ANC members considering the president innocent, in contrast to the opposition, who will view him liable to removal from office.Following the committee phase, the full National Assembly will vote on the impeachment motion.Back in 2022, there was some ambiguity in the rules. Was the committee first supposed to finalise its work before the full National Assembly would be engaged with the matter, or was the National Assembly entitled to vote summarily that the panel's report was flawed, thus thwarting the whole procedure in this early stage?In December 2022, former Chief Justice Sandile Ncgobo chaired the panel. The panel ruled that there was prima facie evidence of impeachable misconduct, making the president liable for removal.Yet Ronald Lamola, the then minister of justice, stood up in the National Assembly on behalf of the ANC and declared that the Ngcobo report was flawed and that the National Assembly should not consider it.That was long before the elections of May 2024, when the ANC’s numbers still secured it a commanding position. The ANC therefore used its majority and voted to reject the report. This brought the impeachment proceedings to a premature end..Stunned.However, the Economic Freedom Fighters (EFF) did not accept this sweeping of the matter under the rug and approached the Constitutional Court. The result was the 8 May ruling, which so deeply stunned the ANC.The majority of the court ruled that rule 129 was flawed. After the Ngcobo panel had delivered its report, the matter should, according to the court, have gone to the Impeachment Committee with its multiparty composition. This is the committee in which a bed of thorns would be prepared for the president and the ANC.Following the ruling, speculation was rife as to what would happen next. Will Ramaphosa resign? If so, who will succeed him, and what will such events hold in store for the current multiparty government?Our suspense did not last long, because on Monday, 11 May, Ramaphosa gave a televised address announcing that he will take the panel’s report to judicial review.The panel’s report is conditional on the National Assembly committee’s further engagement in the matter. Once the review application is lodged, the committee’s work would most probably be suspended. Possibly, suspension would also require the president to move for an interdict, specifically preventing the committee from commencing its proceedings. If the review (and interdict) is successful, the proceedings would be delayed even further, because then the National Assembly would probably have to start all over again with a new panel.But of course, if Ramaphosa is to be believed, his very last intention is to delay or frustrate any procedure. After all, Saint Cyril, as the public has been encouraged to think of him over the years, is surely above reproach? His intention is surely not to obstruct the court, the law, or the Constitution with petty legal delay tactics? Not at all. In fact, the president seemingly only wishes to act as the faithful servant of all these lofty things.Of course, the president is acting within his rights. Nothing prevents him from lodging the review application and moving for an interdict. But the motives are clearly not so noble..Real Truth.The real truth is that Ramaphosa and the ANC are in a tight spot. They must at all costs prevent Ramaphosa from being the victim of the politically hostile Impeachment Committee.It is true that Ramaphosa is no stranger to incisive questioning. Advocate Paul Pretorius questioned Ramaphosa in a professional but demanding manner before the Zondo Commission.But in the committee, hostility awaits from political opponents and enemies, not well-known for their adherence to parliamentary decorum. It will not be calm or particularly polite. Ramaphosa will probably have to endure Glynnis Breytenbach of the Democratic Alliance and Dereleen James of ActionSA, possibly Economic Freedom Fighters (EFF) leader Julius Malema, and several other acrimonious adversaries as well, who are grinding their teeth at Ramaphosa – hostile politicians with intensely rivalrous intentions against Ramaphosa and his party.Furthermore, in the post-May 2024 scenario, the ANC is a minority in the National Assembly, with the opposition enjoying the upper hand in the committee.To make matters worse, the local elections on 4 November loom large. Proceedings in the committee during which Ramaphosa will be castigated are bound to be harmful to the already fragile ANC.In view of this, it is clear why Ramaphosa and the senior leadership of his party decided to have the panel’s report reviewed. In essence, it is all about preventing the parliamentary committee from functioning so that Ramaphosa and the ANC can be spared the political blood-letting that will occur there. The review is aimed at delaying, or, at best, from Ramaphosa’s point of view, avoiding the committee’s work.This tactic is, for the moment, not primarily aimed at avoiding the actual impeachment vote in the National Assembly. Ramaphosa could still survive that. For that, a two-thirds majority is needed. The ANC, with its approximately 40 per cent of the members of the National Assembly, can prevent it – that is, unless enough ANC members defect to the uMkhonto weSizwe Party or the EFF.Nevertheless, and very tellingly indeed, what Ramaphosa and the ANC are doing here are tried-and-tested tactics..Stalingrad.In our political parlance, these have been codenamed Stalingrad tactics, of which former President Zuma is an expert practitioner – ad nauseam.With this review application, President Ramaphosa has at last become former president Zuma's true successor. Zuma's big trouble arose in the deep countryside – in Nkandla. Ramaphosa's trouble too – at Phala Phala. Both ANC presidents were finally forced to deploy Stalingrad. Although the two presidents were, in several respects, very different, they were ultimately forced to resort to similar tactics.Ramaphosa’s Stalingrad might (partially) succeed because a successful review application will likely delay the impeachment for a long time.But who knows, eventually, not in the too distant future, after the last delay and the salvos in the parliamentary committee, there may be an impeachment vote, and Ramaphosa could make history by becoming the first South African head of state to be removed from office.Either way, it would appear that, when push comes to shove, and, more pertinently, when political power is at stake, Mr Ramaphosa and Mr Zuma are not so very different after all..*Professor Koos Malan is one of South Africa’s most rigorous, unapologetic, and insightful constitutional law experts. A familiar voice to the BizNews community, Malan’s analysis cuts through the bureaucratic noise, offering a rational perspective on the country’s complex legal and political landscape. This piece was written for The Common Sense..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here.

Ramaphosa and impeachment: What now? - Koos Malan

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