POINT OF ORDER | Move to bar impeached officials from public office should be embraced

Parliament’s portfolio committee on justice and constitutional development takes up a strange and yet crucial question this month on which additional categories of candidate disqualification should apply.

This follows DA MP Glynnis Breytenbach’s proposed amendment of three sections of the constitution to prohibit any former judge or Chapter 9 head removed by the president on grounds of gross misconduct or misconduct from becoming a member of parliament, provincial legislature and local council.

If parliament adopts the proposal, it will do more than merely temporarily keep serious violators of the law out of the legislative bodies but also maintain the integrity of SA’s democratic regime by ensuring that elected representatives possess the requisite respect for the rule of law.

Lessons learnt since the dawn of our democracy have made us wiser because we now know that the constitution recognises that the electorate’s screening ability for undesirable persons is also limited by our significantly closed-list proportional representation system, where we largely cast votes for political parties and their political elite craft candidate lists, and less directly for individuals.

The constitution and the law, therefore, must constantly limit the ability of anyone to foist unsuitable individuals on the citizenry.

The Electoral Act (Section 30(1) and Section 31E) has long provided for grounds for objecting to any unsuitable candidate, including in cases where a candidate did not sign the prescribed acceptance of nomination, did not sign a prescribed undertaking that they are bound by the code of conduct, and is not qualified in terms of the constitution to stand in the election.

This is in addition to constitutional provisions (Section 47 and Section 106) which disqualify candidature of anyone who has been declared to be of unsound mind by a court, an unrehabilitated insolvent, or was convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine.

This disqualification ends five years after completion of the sentence and does not extend to people who are yet to be sentenced or to those, while sentenced, who have yet to exhaust the appeal mechanisms available to them.

In a landmark judgment delivered on Friday, the apex court found Rule 129(i)(b) of the National Assembly rules was inconsistent with the Constitution and invalid. The court also set aside the National Assembly vote taken on December 13 2022 which rejected the recommendation that the report of the independent Phala Phala panel be referred to an impeachment committee. Reading the order, the court said it had exclusive jurisdiction over the challenge to the constitutionality of Rule 129(i), but by majority decision found it did not have exclusive jurisdiction over the challenge to the National Assembly vote itself. The court ruled the National Assembly’s impeachment process failed constitutional muster because MPs were permitted to terminate proceedings even after an independent panel had found sufficient evidence that the president may have committed serious violations warranting further investigation. The judgment effectively removes parliament’s discretion to halt impeachment proceedings at that stage. The court ordered that, pending amendments to the National Assembly rules, Rule 129(i) must now be read to require that where an independent panel concludes sufficient evidence exists, the matter “must be referred” to an impeachment committee for a full inquiry. It further clarified that where a panel finds insufficient evidence, the National Assembly may still resolve to proceed with an inquiry, in which case the matter must also be referred to an impeachment committee. As part of the order, the Constitutional Court referred the report of the independent panel directly to parliament’s impeachment committee established under the National Assembly rules. The court also ordered the first to fourth respondents to pay the costs of the first applicant, including the costs of two counsel where applicable. The ruling is a major constitutional and political development in the long-running Phala Phala saga, reviving impeachment proceedings that had effectively been halted after the National Assembly vote in December 2022. The matter originates from the February 2020 theft of a substantial amount of foreign currency from President Cyril Ramaphosa’s Phala Phala game farm in Limpopo, a scandal that has overshadowed South African politics for more than four years and prompted serious questions about executive accountability, parliamentary oversight, and the rule of law. The affair became public in June 2022 when former State Security Agency director-general Arthur Fraser filed criminal charges against Ramaphosa, alleging about $580,000 stolen from the farm had been hidden from authorities and state resources were misused to investigate the theft. Ramaphosa denied any wrongdoing, maintaining the funds derived from a legitimate buffalo sale to Sudanese businessman Hazim Mustafa. Facing mounting political pressure, parliament convened an independent Section 89 panel under former chief justice Sandile Ngcobo to assess whether prima facie grounds existed for finding Ramaphosa had breached the constitution or engaged in serious misconduct sufficient to trigger impeachment proceedings. In November 2022, the panel found the president had a case to answer and may have committed serious violations. The ANC-controlled National Assembly nonetheless voted against adopting the panel’s report, effectively shutting down any impeachment inquiry. That decision drew legal challenges from the EFF and the African Transformation Movement, both of which petitioned the Constitutional Court on the grounds that parliament had abdicated its constitutional duty to hold the president to account. The Constitutional Court heard arguments in late 2024 but took more than a year to deliver a ruling, a delay that drew sharp criticism from opposition parties and legal observers. TimesLIVE

There is ample evidence that the courts and the electorate have vigilantly enforced disqualifications of candidates over the years.

In 2024, the Electoral Commission (IEC) received and successfully processed 82 objections in relation to candidates nominated by 21 political parties.

It noted that, despite many of the objections not meeting the prescribed submission format, it had, in keeping with its obligation to ensure free and fair elections, considered whether substantively the objections met the criteria in the constitution and the law.

In so doing, the IEC affirmed the enforcement of a candidate elimination process using existing procedural steps that are transparent and capable of responding fast enough.

These procedural steps have over the years set a positive tone for elected representatives when they begin their functions in legislative bodies and take an oath or solemn affirmation to “obey, respect and uphold the constitution and all other laws of the Republic”.

The proposed constitutional amendment is a radical affirmation of the rule of law and pursues a legitimate aim of ensuring the proper functioning and maintenance of our democracy.

Imposing additional disqualifications to assess every available candidate should encourage voters and candidates to consider every strategic nomination, every resource allocation and every campaign decision to preempt mistakes — working through the straightening lens of foresight and accountability and not the distorting mirror of hindsight, apathy and nostalgia.

No-one wants to be in an untenable position where, in October 2023, disgraced then public protector advocate Busisiwe Mkhwebane was sworn in as an MP for the EFF, just 39 days after the National Assembly she joined had voted to remove her for incompetence and misconduct.

And in June 2024, Dr John Hlophe became a member of the National Assembly, four months after the house voted for his removal from the bench after years of legal wrangling over his attempts to sway Constitutional Court judges to rule in favour of Jacob Zuma, who is now the leader of the MK Party.

Similarly, Mkhwebane served on the portfolio committee on justice and Correctional Services which oversaw the public protector, the office she was found to be incompetent to lead.

Mkhwebane has since left the EFF and now represents the MK Party in the Mpumalanga legislature.

These proposed amendments do not claim that the existing measures are defective. They do not allege inadequate warnings about known risks.

Their theory is that enhanced disqualification signifies that, in certain cases, eligibility for office should not be left to a simple majority decision by the electorate.

Instead, the constitution must expand the set minimum criteria that a prospective public representative must fulfil.

They allege that the constitutional framework must be unequivocal in protecting our political rights and democracy.

South Africans must embrace this claim.

EFF leader Julius Malema walked out of the Constitutional Court in Braamfontein a very happy man after the EFF’s victory as handed down by Chief Justice Mandisa Maya, in the party’s bid to refer the Phala Phala matter back to parliament. Malema said he would order the chief whip of his party to write to the speaker of the National Assembly immediately to get the process started as soon as possible. “The chief whip of the EFF should have written by now to the speaker to establish the impeachment process immediately. We cannot wait any longer; we have been waiting for too long already. The impeachment process must kick in with immediate effect, and that’s what we demand.” The red beret leader said the impeachment committee would most likely mimic the ad hoc committee in terms of its composition. “We have constituted impeachment processes before. Allocations to the impeachment committee will be determined by the numbers that parties have. We have the ad hoc committee now, and we are able to proceed with a number of different parties represented there. That’s how we are going to do it. However, he stated that the impeachment process had investigative powers unlike the ad hoc committee. “The president has got to come, sit there and account. He can’t send any minister. Among other things, we are going to demand that the impeachment committee go to Phala Phala. We want to see where those people opened a hole for access, how they did it, how they sneaked in and stole the money, and even how the money came in.” Malema said he was eagerly awaiting state institutions that cleared Ramaphosa to be exposed. “All of that nonsense that was said by the Reserve Bank, the South African Revenue Service and the public protector — it will all be exposed that they were using those institutions to protect an individual and not the constitution of the country.” Malema said it will be interesting to observe the hand of several political parties in this impeachment process. “The DA was with us, saying, let’s impeach. Now that they are eating bananas and apples, let’s see if they will be able to talk now, with a full mouth.” He lashed out at the ANC MPs who used their numerical strength to sway the vote and shield President Cyril Ramaphosa from possible impeachment. “People use their majority to become unreasonable. That’s why we say that every decision must meet the rationality test. When you’ve got clowns in the majority, what do you do? That’s what they call themselves. You have a situation where people refuse to think and people refuse to reason,” Malema said. “The same occurred when we were debating VAT. They wanted to take a vote because that’s what they are used to, and when they were taken through the law, they refused to listen to the law and interpret what the law says, and the court had to remind them again on these matters.” Malema said it was a panel that stated that there was prima facie evidence, and criticised those who attempted to use their majority to “suppress corruption.” He added that Nkosazana Dlamini Zuma was part of those vindicated today. “They must be ashamed of themselves. Mama Zuma must be proud of herself because she acted alone against her own comrades because her own conscience was very clear. She was using the conscience as guided by the then-chief justice that parliamentarians must be guided by their conscience and not party line.” TimesLIVE

Participation in the envisaged parliamentary public hearings must reflect our collective commitment to defend and deepen our democracy without resorting to divisive political arguments.

Traditional submissions in public participation processes to amend the constitution tend to demand a defect in the clause or its labelling.

This proposed amendment discards both approaches.

It converts ordinary lived experience of evaluating the quality of election candidates and public representatives into generally applicable disqualification provisions.

The stakes reach far beyond this constitutional reform process.

If the constitution blesses additional disqualifications for the pace of innovation, other electoral behaviours will feel the pull.

The result might be law-abiding or ethically upright public representatives. It will be more of both.

Political miracles depend on calculated risk-taking by retaining or replacing public representatives, not on risk-free candidate selection.

Every voter — and every citizen — deserves law-abiding and morally upright public representatives.