President Cyril Ramaphosa is mulling the idea of interdicting the impeachment processes of the National Assembly.
I wonder whether this would be supported by the constitution, any piece of legislation, or case law developed to date.
As laymen, we may not know for sure, though general reading could give some ideas on the prospects of the president’s mulling being successful.
The most difficult cases for ConCourt are the thin and delicate boundary between the judicial and the legislative jurisdictional terrains.
Hugh Corder, a long-standing professor of Public Law at the University of Cape Town, ascribed this to the predating parliamentary sovereignty era, embodied in both the erstwhile colonial and apartheid regimes in SA.
Lamenting the erstwhile parliamentary sovereignty’s entrapping remnants, on democratic SA’s legislative and judiciary functions, Corder said: “… the hold of Westminster parliamentary sovereignty on both the judiciary and political minds, was tenacious”.
Probably being intuitively mindful of the same tenacity in 1998, then Western Cape High Court judge John Hlope expressed this cautionary injunction while delivering judgment in the case, De Lille & Another v Speaker of the National Assembly (1998 (3) SA 430 (C)), that: Parliamentary operations were, with the coming into effect of South Africa’s 1996 Constitution — “not immune from judiciary review”.
Corder further states that there existed in the records of ConCourt, a test formulated by former chief justice Pius Langa in a then landmark judgment, namely: Glenister v the President of the Republic of South Africa & Others (2009 (1) SA 287 (CC) in the CJ’s efforts to prevent justices of the court from injudiciously encroaching on the terrain of the legislative function.
The substance of the Glenister case related to the then imminent dissolution of the Scorpions, a then effective (according to Corder) crime-fighting unit of the state.
Glenister’s counsel implored ConCourt to consider pre-empting the process of putting together/formulating a law by parliament — that would facilitate the dissolution of the Scorpions — by ruling that the process, considering its intentions, was unconstitutional.
Upon the case being referred to ConCourt by Glenister’s counsel, and on noting the counsel’s prayer, Langa was of a different view.
He viewed interfering with an incomplete Act or process undertaken by the legislative arm of government (National Assembly) — as unconstitutional.
Such interference, he ruled, violated the critical and delicate balancing act of observing and safeguarding the principle of the separation of powers.
Langa did not rule against Hlope’s finding per se, namely, that parliamentary processes and decisions were bound to be subject to judicial review in SA’s democratic era.
His focus was rather on interfering with incomplete processes of parliament.
It is history today that the chief justice did not stop at passing this landmark judgment in his attempts to point the way forward for similar cases.
He went further and formulated a test for establishing whether this or a similar case brought before the court in future would pass the test for jurisdiction.
The test reads as follows: “Intervention would only be appropriate, if an applicant can show that there would be no effective remedy available … once the legislative process is complete, as the ‘unlawful’ conduct [in this case, the enactment of the new law] — will have achieved its object in the course of the process.
“The applicant must [further] show that the resultant harm is material and irreversible.”
The test somewhat made life a little difficult for the applicant in that the burden of proof was placed on the counsel to, in summary, advance evidence to the effect that: “… the resultant harm … [emanating from the imminent parliamentary decision] … [would be] material, and irreversible [in the sense that] … there would be no effective remedy [for] redress … once the legislative process is complete”.
The Constitutional Court on its side, needed only to establish whether the parliamentary Act or process under review was or was not work-in-progress or moot.
Needless to say in this article, I assume that Langa’s test still stands to date — considering that the principle of “precedence in law”, prevails in fact and in law in SA.
One wonders then whether the current impeachment processes against Ramaphosa are not work-in-progress, the kind of National Assembly processes that Langa sought to avoid interfering with in 2009.
I am mindful of the fact that high courts have unfettered jurisdiction on interdiction cases, though I am told all courts of law may have qualified jurisdiction, nevertheless.
The point I am making is: if ConCourt has no legal right to hear interdiction cases of the kind described above, then all lower courts should not have.
Furthermore, a test for qualifying for the acceptance of the interdiction case by a court, or for urgency — is more likely to fail, when one considers whether there exists no option in National Assembly processes, which has the potential to safeguard the interests of the president, as the interdiction would have safeguarded, if successful.
I am also of the view that the impeachment committee processes themselves have that potential, considering that the committee has no option but to firstly look into the veracity of the panel report itself before proceeding further.
Mawonga Deliwe, retired Ulwazi High School principal and University of Fort Hare lecturer.
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