Case CCT 35/24
[2026] ZACC 10
Hearing Date: 26 November 2024
Judgement Date: 08 May 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Friday, 8 May 2026, the Constitutional Court handed down judgment in an application brought by the Economic Freedom Fighters (EFF) and the African Transformation Movement (ATM) regarding the Phala Phala controversy, which concerns the alleged theft of a large sum of foreign currency from the private Phala Phala Wildlife Game Farm (Phala Phala) of President Cyril Matamela Ramaphosa (President), and the circumstances surrounding that incident. Three judgments were produced. The first judgment is written by Maya CJ, with Madlanga ADCJ, Rogers J and Theron J concurring. The second judgment is penned by Kollapen J, with Mathopo J, Seegobin AJ and Tshiqi J concurring. The third judgment is written by Majiedt J, with Mhlantla J and Tolmay AJ concurring.
Background
In June 2022, the ATM submitted a motion to the Speaker of the National Assembly (Speaker) in terms of section 89 of the Constitution and rules 129A to 129Q of the Rules of the National Assembly (NA Rules), requesting the National Assembly to initiate an inquiry into the removal of the President from office for his conduct in the Phala Phala controversy. The Speaker appointed an Independent Panel which produced a report on 30 November 2022 (Report), finding that that the information before it prima facie (on the face of it) established that the President may have committed, among other things, a serious violation of the Constitution and the law, and serious misconduct. On 13 December 2022, the Report came before the National Assembly for a debate and vote on whether to refer the report to the Impeachment Committee. The National Assembly voted against referring the Report to the Impeachment Committee for further examination (NA vote).
The applicants approached the Court seeking to declare the NA vote as unconstitutional. In addition, the applicants sought a declaratory order that rule 129I of the NA Rules is inconsistent with the Constitution and invalid.
The respondents who opposed the matter are the Speaker; the National Assembly; the President; and the African National Congress (ANC). The other respondents are all the other political parties represented in the National Assembly and did not oppose the application.
The EFF and ATM made broadly aligned arguments before the Court. The applicants submitted that the application engages the Court’s exclusive jurisdiction because it concerns a failure of the National Assembly to fulfil its constitutional obligation under section 89(1) of the Constitution to hold the President accountable. They contended that the National Assembly acted irrationally and unlawfully by blocking the referral of the Report to the Impeachment Committee and, by extension, failed to exercise oversight of the President. The applicants further submitted that rule 129I is unconstitutional, as it allows the National Assembly to block the establishment of an Impeachment Committee even where an Independent Panel had identified a prima facie case against the President. According to the applicants, this renders the mechanism susceptible to majoritarian abuse.
The Speaker and the National Assembly accepted that the Court’s exclusive jurisdiction is engaged but argued that neither rule 129I nor the NA vote is unconstitutional, as Parliament has the authority to regulate its own processes. They submitted that the delay in challenging the NA vote is unreasonable and should not be overlooked as it rendered the matter moot.
Both the President and the ANC respectively submitted that the Court does not have exclusive jurisdiction over the challenge to the NA vote, as the applicants’ case was a simple rationality review. They each contended that that the NA vote was rational and lawful, as the Report was flawed. They further argued that the challenge to the NA vote was unreasonably delayed and should not be entertained.
The first judgment
The first judgment held that the Court enjoys exclusive jurisdiction over the challenge to rule 129I, as well as the related challenge to the validity of the NA vote. It determined that the challenges are not moot, and that the delay in challenging the NA vote, though unreasonable, could be overlooked.
On the merits, the first judgment held that rule 129I permits the National Assembly to terminate the impeachment process prematurely before a full investigation has taken place and before all relevant information has been properly ventilated. The first judgment emphasised that although section 89(1) is discretionary in relation to the decision on whether to remove the President, it imposes constitutional obligations to put in place an effective mechanism and to take appropriate action in holding the President accountable. The first judgment found that by enabling the National Assembly to halt the process before the Impeachment Committee can more fully investigate a motion found to have substance by the Independent Panel, renders rule 129I an ineffective mechanism, undermines the values of transparency and accountability, and fails the appropriate action standard. The first judgment thus set aside rule 129I as inconsistent with the Constitution and invalid.
The first judgment also held that the NA vote is tainted by the same constitutional defect as rule 129I. As such, the first judgment invalidated and set aside the NA vote as inconsistent with the Constitution, and referred the Report to the Impeachment Committee.
In respect of a just and equitable remedy, the first judgment found that a limited severance coupled with reading-in is necessary to correct the rule in compliance with the Constitution, to remain in effect until the National Assembly corrects the defect in the affected rule. It held that it would also be appropriate to refer the Report to the Impeachment Committee consistent with the reading-in remedy ordered. The opposing parties, the first to fourth respondents, were ordered to pay the EFF’s costs, including the costs of two counsel. The ATM did not seek costs.
The second judgment
The second judgment penned by Kollapen J, with Mathopo J, Seegobin AJ and Tshiqi J concurring, begins by locating its assessment of the issues in this matter in the deliberate interconnectedness and balancing of majoritarian and counter-majoritarian provisions in the Constitution. In doing so, it explored the disenfranchisement of the vast majority of South Africans prior to 1994 and recognised that majoritarian measures are often democracy-enhancing and may, where they appear in the Constitution, represent a deliberate location of political power by the drafters of the Constitution. It found that courts are obliged to respect these choices. In support of this stance, the second judgment relied on the Court’s Certification judgment when it said that “this Court has no power, no mandate and no right to express any view on the political choices made by the [Constitutional Assembly] in drafting the [new text]”.
On the basis of these principles, the second judgment concludes that the Court’s exclusive jurisdiction over the challenge to rule 129I was engaged, but not for the reasons advanced in the first judgment. Relying on the Court’s decision in EFF II, the second judgment reiterated that the only obligation imposed on the National Assembly by section 89 is the responsibility to develop rules to facilitate the removal of the President. It was whether this obligation was discharged that had to be assessed and not whether an accountability obligation on the part of the National Assembly was discharged, as the first judgment finds.
The second judgment agrees with the first judgment as to delay and mootness but diverged from its finding of unconstitutionality. Again, aligning itself with EFF II, the second judgment found that the only obligation section 89 created was for the National Assembly to put in place rules to facilitate the removal of the President, should it elect to do so, and it is against that objective that rule 129I fell to be assessed. In reaching this conclusion, the second judgment recognised section 89 as a tool of political accountability but noted that whether it is invoked is wholly within the discretion of the National Assembly and cannot be considered obligatory. In fortifying this finding, the second judgment distinguished section 89 from specific provisions of the Constitution, such as section 42(3) and 91(2), that expressly create mutual accountability obligations on the part of the President and the National Assembly.
The second judgment concluded that rule 129I is not unconstitutional in that it properly recognised and gave effect to the permissive power of the National Assembly to remove the President. It found that the permissive power of the National Assembly to remove the President contained in section 89 was a deliberate expression of majoritarianism and, in line with trite principles of the separation of powers and constitutional supremacy, the Court was obliged to respect the powers vested by section 89 and the political decisions taken by the National Assembly in preparing the NA Rules. With these considerations in mind, it concluded that rule 129I was not unconstitutional, but a proper operationalisation of the permissive powers vested in the National Assembly by section 89. All that the rule requires is that the National Assembly consider and decide upon the report and the recommendation of the Independent.
Panel. This can never be unconstitutional, nor does it allow the National Assembly to act unlawfully. Indeed, both the first and third judgments accept this, though in limited circumstances.
With respect to the challenge to the NA vote, the second judgment concluded that the Court does not enjoy exclusive jurisdiction for two reasons. First, having concluded that section 89 does not create a constitutional obligation to hold the President to account on the part of the National Assembly, it found that the failure to discharge the alleged obligation cannot be relied upon to establish the Court’s exclusive jurisdiction. Second, it concluded that the true bone of the applicants’ argument, and the discomfort expressed in the first and third judgments, in fact lies in the manner in which the National Assembly voted – and not with the rule itself. Relying on the Court’s judgment in Van Rooyen v The State, which draws a clear and unambiguous distinction between the adequacy of a rule and the exercise of power under a rule, it concluded that the appropriate remedy for this challenge lies in a review of the exercise of said power and not in invalidation of the rule. The High Court would have the jurisdiction to consider such a challenge.
Turning to the alternative request for direct access to challenge the NA vote, the second judgment concluded that there were no exceptional circumstances in this matter and the interests of justice did not favour granting direct access. It concluded that the High Court enjoyed the necessary jurisdiction to deal with a review challenge.
Finally, and in response to the first and third judgments, the second judgment outlined what it believed to be two fundamental and insurmountable contradictions in the outcomes arrived at by those judgments.
First, it cannot be that a vote taken in terms of an unlawful rule is automatically impugned by virtue of the unlawfulness of said rule said the second judgment. It explained that despite the reasons posited for the unconstitutionality of the rule in the first and third judgments, the rule, in its current form, could still yield lawful votes by the National Assembly. This would occur, for example, in circumstances where the National Assembly accepted a positive recommendation of the Independent Panel and the matter proceeded to the Impeachment Committee, or where it refused to accept a negative recommendation of the Independent Panel and the matter proceeded to the Impeachment Committee despite the Independent Panel’s finding. With this in mind, the second judgment took the view that whilst an act taken in terms of an unlawful empowering provision may be invalidated where the empowering provision is declared unlawful, this should not be considered automatic. In this context, it had already shown that the rule can produce valid votes by the National Assembly despite the invalidation of the rule. Furthermore, the second judgment noted that the same outcome as a declaration of invalidity, as ordered in the first and third judgments, could be achieved through a rationality challenge to the vote. Thus, it raised the inevitable but unanswered question: why unnecessarily impugn the rule when the same outcome may be achieved through a challenge to the NA vote?.
Second, the second judgment considered that the order proposed by the first and third judgments would oblige the National Assembly to accept a positive recommendation from the Independent Panel but would allow it the discretion to overturn a negative recommendation from the Independent Panel, if need be. The second judgment held that there was no conceivable reason for this contradictory approach to positive and negative recommendations from the Independent Panel. On the one hand, it recognises the validity of the National Assembly’s power to grapple with a negative recommendation from the Independent Panel, whilst denying it the exercise of such power when a positive recommendation is made. This, says the second judgment, supported its conclusion that the source of the first and second judgments’ discomfort was with the NA vote which it was obliged to address through a challenge to the NA vote, without impugning the rule.
On these bases, the second judgment would have found exclusive jurisdiction in the challenge to the rule but would have dismissed said challenge as rule 129I passes constitutional muster.
The third judgment
The third judgment, penned by Majiedt J, with Mhlantla J and Tolmay AJ concurring, agreed with the first and second judgments’ reasoning and findings on exclusive jurisdiction with respect to the rule, that is, that the Court has exclusive jurisdiction to consider its constitutionality. The third judgment, like the first judgment, found that rule 129I is unconstitutional, but on a different basis.
The third judgment held that rule 129I deprives the full National Assembly of the opportunity to vote on the existence of a ground for impeachment, and it precludes a full ventilation of the facts that inform the vote. The National Assembly is constitutionally obliged to determine whether the President has committed conduct falling within section 89(1), and that determination must be rational, evidence-based, and attributable to the National Assembly as the ultimate decision-maker.
In EFF II, the Court interpreted section 89(1) as entailing a structured two-stage process. First, there must be an investigative and evaluative stage in which the relevant facts are gathered and assessed. Second, there must be a decision stage in which the National Assembly determines whether the jurisdictional facts for removal exist and, if so, whether to remove the President. While the investigative and evaluative tasks may be performed by committees or through other mechanisms, the constitutional obligation to determine whether a ground for removal exists rests solely with the National Assembly.
The third judgment held that rule 129I inserted a third, antecedent step prior to rule 129J. Once a motion is initiated and referred to an Independent Panel, the Independent Panel conducts a preliminary assessment and reports on whether sufficient evidence for an inquiry exists. Thereafter, the National Assembly is required to vote, not on whether a section 89 ground exists, nor on whether the President should be removed (that is, the two steps envisaged in EFF II), but on whether a section 89 inquiry should proceed further. If the National Assembly resolves not to proceed, the process terminates at that point, and the section 89(1) impeachment motion is never voted on. The National Assembly never gets to consider either the first or the second stage. This is a fatal flaw and a violation of the Constitution. The impugned rule, as it stands, requires the National Assembly to first step back and decide whether to engage in that process at all, and permits the process to be halted before it even begins.
Even if the National Assembly were to consider the Independent Panel’s report, its vote at the rule 129I stage remains a procedural decision, rather than a substantive constitutional determination. It is not a finding about whether the President has committed a serious violation, or misconduct, nor does it pronounce on his or her inability to perform the functions of office. The fact that the National Assembly never applies its mind to the section 89(1) question is further underscored by rule 129M, which takes place at the Impeachment Committee stage. That stage is never reached if the National Assembly decides not to proceed beyond the Independent Panel. Rule 129M provides that, once the National Assembly has resolved to proceed, the Impeachment Committee must “establish the veracity and, where required, the seriousness of the charges”. This necessarily means that the National Assembly’s consideration under rule 129I is not related to the veracity of the report.
The National Assembly is therefore expected by the impugned rule to make a decision in the absence of the information that the Constitution requires for that decision. The result is that the preliminary stage does not facilitate the constitutional inquiry; it displaces it. This also undermines the majoritarian design of section 89(1). The Constitution envisages that the decisive judgment, whether to remove the President, is to be taken by a special majority of the National Assembly (two-thirds) after engagement with the merits. But, because rule 129I allows the process to be halted at the threshold, the National Assembly is never called upon to make that value judgment. In summary, rule 129I introduces an impermissible preliminary step that allows the National Assembly “to decide whether to decide”.
In addition to the reasoning above, the third judgment held that the section 89 power cannot be exercised without a factual foundation. In order for a section 89(1) ground to be established, there must be a partly factual, (does there exist conduct capable of meeting such a ground?), and partly normative (does the conduct meet the level of seriousness envisaged by that section?) finding. That vote, as the rules stand, relates neither to the factual finding nor the normative determination of whether a listed ground exists.
The third judgment further held that this state of affairs results in a lack of transparency and openness in the process. The Independent Panel conducts its work on a limited written record, and the more rigorous processes of testing evidence, assessing veracity and evaluating seriousness are reserved for the Impeachment Committee stage. If the process is halted before that stage is reached, the National Assembly’s decision is taken without the benefit of a full and public exposition of the issues.
The absence of transparency has consequences beyond the immediate decision. Where evidence is properly tested and placed in the public domain, it equips the electorate with information that bears directly on the exercise of political choice, including at the next election. It also enhances the conditions under which members of the National Assembly themselves deliberate. This does not mean that the National Assembly is obliged to reach any particular outcome, nor does it diminish its authority to decide whether to remove the President. It means only that the process through which that authority is exercised must be sufficiently open to allow for meaningful public scrutiny of the issues and the decision.
The third judgment concluded that rule 129I is unconstitutional and must be set aside. It further holds that the NA vote must likewise be set aside because it was taken under an invalid rule that prevented the National Assembly from properly determining whether a ground for impeachment existed. The NA vote therefore lacked a lawful foundation. Applying Genesis Medical Schemes v Registrar of Medical Schemes, the third judgment held that, once the rule is set aside, the vote taken under it cannot stand.
The Full judgment here