RAMONA GREWAN

The Constitutional Court judgment in the Phala Phala matter represents one of the most significant constitutional accountability rulings in post-apartheid South Africa.

At its core, the judgment is not merely about President Cyril Ramaphosa, but about parliament’s constitutional obligations and the integrity of South Africa’s oversight architecture under the constitution.

The court’s decision confirms that the National Assembly failed to discharge its constitutional duties by rejecting the Section 89 Independent Report without permitting a proper impeachment inquiry to unfold. In doing so, parliament undermined the doctrine of accountability embedded within the constitution.

Section 42 (3) of the Constitution, 1996, provides that the National Assembly is elected to “provide a national forum for public consideration of issues, to pass legislation and to scrutinise and oversee executive action”. Similarly, section 55(2) obliges the National Assembly to maintain oversight of the exercise of national executive authority and of organs of state.

Most critically, section 89 establishes a constitutional mechanism for the removal of a president for:

a serious violation of the constitution or the law;
serious misconduct;
inability to perform the functions of the office.

The Constitutional Court has consistently emphasised that accountability mechanisms within the constitution are not optional political conveniences, but binding constitutional obligations.

In Economic Freedom Fighters v Speaker of the National Assembly and others, the court held that parliament failed in its constitutional obligations by failing to hold President Jacob Zuma accountable for the Nkandla scandal.

Chief justice Mogoeng Mogoeng stated that the National Assembly must act as “the embodiment of the regular and consistent scrutiny of the exercise of public power”. That principle applies with equal force in the Phala Phala matter.

The Section 89 Independent Panel, chaired by former chief justice Sandile Ngcobo, did not make findings of guilt. Rather, it concluded that there was prima facie evidence warranting further inquiry. Parliament’s role at that stage was therefore not to exonerate the president politically, but to permit the constitutional process to continue. By collapsing the distinction between a preliminary threshold inquiry and a final determination of guilt, parliament effectively frustrated the very purpose of section 89.

What makes the matter particularly troubling is that the very institution entrusted with making laws and defending constitutional democracy became complicit in weakening it through partisan political protection.

Parliament is not merely a political gathering of party representatives. It is a constitutional institution created to safeguard accountability, transparency and the rule of law. Members of parliament do not swear allegiance to political parties; they swear allegiance to the constitution of the Republic of South Africa. Yet in the Phala Phala matter, parliamentary conduct reflected a troubling prioritisation of party loyalty over constitutional duty.

The rejection of the Section 89 Independent Report demonstrated a profound institutional failure. Parliament was not asked to remove the president immediately; it was merely required to permit a constitutionally mandated inquiry to proceed. Instead, MPs voted largely along party lines, effectively collapsing constitutional accountability into political expediency.

This conduct fundamentally undermined constitutional supremacy under section 2 of the constitution. South Africa is not governed by parliamentary supremacy, where political majorities may act without constitutional restraint. It is governed by constitutional supremacy, where all exercises of public power must comply with constitutional obligations.

The conduct of parliament amounts to a dangerous erosion of democratic accountability. When lawmakers themselves disregard constitutional duties in favour of partisan protectionism, public confidence in constitutional institutions is severely weakened.

Similarly, in United Democratic Movement v Speaker of the National Assembly, the court reaffirmed that MPs are individually accountable to the constitution and to the people of South Africa, not merely to party structures.

From a strictly legal perspective, the Constitutional Court did not find the president guilty. The court’s ruling focused primarily on parliament’s failure to fulfil its constitutional oversight obligations under Sections 42, 55 and 89 of the Constitution. Legally, President Ramaphosa therefore remains entitled to the presumption of innocence and due process.

What is particularly alarming in the Phala Phala matter is the apparent normalisation of blind party voting in matters involving constitutional accountability. This transforms parliament from an oversight institution into a political shield for the executive. Such conduct is incompatible with the foundational values of accountability, responsiveness and openness set out in section 1(d) of the constitution.

A critical legal concern is that parliament appeared to treat the section 89 process as a political contest rather than a constitutional safeguard. Although parliament enjoys institutional autonomy, that autonomy cannot be exercised irrationally or in a manner contrary to constitutional obligations. The Constitutional Court has repeatedly held that exercises of public power must satisfy the principle of legality, which forms part of the Rule of Law under Section 1 (c) of the constitution.

The Constitutional Court judgment, therefore, serves as a stark reminder that constitutional democracy cannot survive where oversight institutions abandon their independence in favour of party-political interests. Parliament’s conduct reflected not merely poor judgment but a constitutional dereliction of duty.

Critically, the ruling exposes a deeper structural crisis within South Africa’s democratic system: the increasing subordination of constitutional governance to party political discipline. When MPs vote according to party instruction, even where constitutional accountability is at stake, the doctrine of separation of powers becomes hollow. This trend is dangerous in constitutional democracies because oversight institutions are intended to serve as checks on executive power rather than extensions of it.

A further constitutional and political question inevitably arises from this judgment: should President Ramaphosa resign?

From a strictly legal perspective, the Constitutional Court did not find the president guilty. The court’s ruling focused primarily on parliament’s failure to fulfil its constitutional oversight obligations under sections 42, 55 and 89 of the constitution. Legally, President Ramaphosa therefore remains entitled to the presumption of innocence and due process.

However, constitutional democracies are not governed solely by technical legality. They are also sustained by public confidence, ethical leadership and constitutional accountability. The significance of this judgment lies in the fact that South Africa’s Apex Court found that parliament acted unlawfully in shielding the president from proper constitutional scrutiny. This alone raises profound concerns regarding executive accountability and the integrity of democratic institutions.

The question is therefore not merely whether the president is legally compelled to resign, but whether continued leadership under such constitutional controversy strengthens or weakens public trust in governance and the rule of law.

In mature constitutional democracies, political accountability often extends beyond criminal guilt. Leaders have resigned internationally not because courts found them guilty of crimes, but because constitutional legitimacy, institutional credibility and public confidence had been compromised.

At the same time, others may argue that resignation before the completion of proper constitutional processes would undermine procedural fairness and the presumption of innocence. They may contend that the appropriate course is for parliament to conduct a lawful and constitutionally compliant inquiry now, as envisaged under section 89.

Nevertheless, what remains deeply troubling is that the Constitutional Court once again has to intervene to compel parliament to fulfil its constitutional obligations.

Ultimately, whether Ramaphosa should resign is both a constitutional and moral question. Legally, the process must still unfold. Politically and ethically, however, the judgment undoubtedly casts a significant shadow over the credibility of both the Presidency and parliament itself.