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EFF in Constitutional Court over challenge to National Assembly’s Phala Phala report vote

EFF in Constitutional Court over challenge to National Assembly’s Phala Phala report vote
Julius Malema (EFF President) during EFF Urgent press conference at Winnie Madikizela Madiba House on August 15, 2024 in Johannesburg, South Africa. (Photo by Gallo Images/Lubabalo Lesolle)
Victoria O’Regan and Bheki Simelane
By Victoria O’Regan and Bheki Simelane
26 Nov 2024
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The red berets want the Constitutional Court to declare the National Assembly’s decision in December 2022 to not adopt the section 89 panel report, irrational and unlawful, and set it aside.

EFF supporters marched to the Constitutional Court on Tuesday morning (26 November), as the party and the African Transformation Movement (ATM) challenged Parliament’s decision not to adopt the section 89 panel report that could have led to an impeachment inquiry into President Cyril Ramaphosa’s Phala Phala scandal. 

The EFF wants the Constitutional Court to set aside the National Assembly’s decision in December 2022 to not adopt the report by an independent panel chaired by former chief justice Sandile Ngcobo.    

The EFF is also challenging the legality of one of the Rules of the National Assembly, which allowed the vote to take place. 

Read more: ConCourt to hear EFF’s case on Phala Phala impeachment proceedings

The EFF approached the court in February 2024, challenging the legality of the December 2022 vote in which Parliament decided against instituting an impeachment inquiry into the President. 

On Tuesday, a key issue for several of the justices was why it took as long as 14 months for the EFF to launch the application. Justice Leona Theron said she was concerned that the party provided no explanation for the delay. 

The matter was brought to the ConCourt by the EFF after the Reserve Bank, South African Revenue Service and Public Protector each pursued investigations into the matter and found no wrongdoing on the part of Ramaphosa, Daily Maverick’s Nonkululeko Njilo reported.

EFF Phala Phala Malema EFF leader Julius Malema during a press conference at Winnie Madikizela Madiba House in Johannesburg on 15 August 2024. (Photo: Gallo Images / Lubabalo Lesolle)



The investigations came after former correctional services commissioner Arthur Fraser, in June 2022, opened a criminal complaint against Ramaphosa for allegedly aiding in concealing a crime at his private Phala Phala farm in Limpopo. 

Fraser claimed that $4-million in cash, concealed in couches and mattresses, had been stolen from the farm in February 2020. 

After the allegations came to light, the ATM submitted a motion in terms of section 89 of the Constitution that allows Parliament to remove a president from office for a serious violation of the Constitution or the law, serious misconduct, or inability to perform the functions of office. 

The motion was rejected, but the ATM was allowed to resubmit a complaint motion in what is the first step of a two-stage process to impeach a president. 

Parliament then, under section 89 of the Constitution, initiated an independent panel to determine whether Ramaphosa had violated the Constitution or the Code of Executive Ethics. 

The panel found there was prima facie evidence suggesting the President had an impeachment case to answer over “serious violations” of the Constitution for exposing himself to a conflict of interest, doing outside paid work, and contravening the Prevention of Corrupt Activities Act. 

The panel’s report was debated by the National Assembly in December 2022, when at least 214 MPs voted against its adoption, with 148 votes in favour and two abstentions. 

Read more: ANC MPs to vote against adoption of Phala Phala report

In papers filed before the ConCourt, the EFF argued that by failing to adopt the section 89 report and have the matter referred to the impeachment committee, Parliament failed to exercise oversight over the President and hold him accountable. 

“Considering the evidence against him, the National Assembly’s failure to do so must be declared unlawful. In addition to this, the EFF seeks a finding by this court that Parliament should amend the rules that were enacted in order to give proper effect to the impeachment process contained in section 89 of the Constitution,” it argued. 

The ATM is a second applicant in the matter. The Speaker of the National Assembly, the National Assembly, Ramaphosa and the ANC are all respondents.  

On Tuesday, the EFF’s legal representative, advocate Kameel Premhid, said the ANC, in its arguments, sought to draw a distinction between “sufficient information” and “prima facie evidence” for the purposes of an impeachment motion.

“Insofar as that is a reason to vote down the report, it’s not a legally cognisable reason… And it’s not a legally cognisable reason for this simple fact – and that is that there is binding authority which tells you that prima facie evidence exists on a spectrum and that the objective to find prima facie evidence for the purpose of a motion, is not to subject the initial sifting mechanism done by the panel to the same threshold of actual guilt, it’s something lower than that. And to the extent that the panel engaged with sufficient information and prima facie evidence, the panel discharged its responsibility accordingly,” Premhid said.

“And that’s why that reason – insofar as that is the principal reason in front of you is concerned – that’s no reason at all.”  

‘The EFF will not die’


On Tuesday, throngs of EFF supporters in red regalia gathered at Mary Fitzgerald Square in Newton, Johannesburg, as early as 8am for the march to the Constitutional Court. 

Rambo Magasela (37), who arrived at 9.30am from Pretoria, said he had come to support the EFF’s case at the ConCourt, but most importantly to support leader Julius Malema against the betrayal by some current and former EFF members.

Read more: Malema dismisses reports of potential EFF rebellion over Ndlozi ‘ban’

Surprisingly, most EFF members had very little to say about the party’s court challenge, but a lot about betrayal and loyalty to the party and Malema, as well as the exodus of party leaders – with former founding member Alfred Motsi, a North West leader, being the latest to quit.

“The commander in chief created a home for them but they have become too comfortable and started plotting against the commander in chief. I want to tell them that we will not budge, we will always be behind our president. He is the only leader who is committed and brave [enough] to confront political bigwigs like Ramaphosa,” Magasela said.



“EFF all the way. No DNA, purely EFF. I am here to take a stand against all those who are questioning the leadership of our president, Julius Malema,” said Agnes Mashiloane from Alexandra, adding that Malema is the only political leader in the country who has the interests of all South Africans at heart. 

While Malema said on Monday that his party would be joined by other organisations, with the exception of only the MK party, Daily Maverick did not spot any organisations other than EFF members at the march. 

“Malema is the future president of this country and he continues to prove that by taking on the most powerful person in the country, the president,” said Sithembile Mhlanga from Soweto.

​​“I am here to support our president Julius Malema as he pursues the most powerful man in the country. The commander in chief is the only future leader of South Africa and he has proved that by his bravery of speaking truth to power. They are deceiving themselves, the EFF will not die,” said Samson Kobo from Pretoria.

However, Syndey Marumo, an onlooker who said he was not a member of the EFF, was sceptical about the party’s march initiative.

“The EFF is dying a fast, painful death and will soon be forgotten. They are clutching on straws and this is probably their last-gasp attempt at announcing their fast-diminishing relevance. The Phala Phala issue is the low-hanging fruit for a dying political party,” Marumo said.

About 2,000 EFF supporters arrived at the ConCourt at about noon, while proceedings were still ongoing. DM

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