National Assembly adopts amended Section 89 rules after ConCourt ruling

The National Assembly has adopted new rules for the Section 89 inquiry process after the Constitutional Court declared Rule 129I of the Rules of the National Assembly unconstitutional and ordered that the matter return to Parliament’s impeachment committee.

What the Assembly approved

The Assembly adopted the proposed rules on Tuesday evening following extended parliamentary debate. The changes implement the Constitutional Court’s directions, including an interim reading-in and amendment of Rule 129I pending formal amendment of the Rules by the Assembly Rules Committee.

Background: ConCourt judgment and the Phala Phala report

On 8 May the Constitutional Court ruled that Parliament’s handling of the Phala Phala report was unconstitutional and invalid, finding Rule 129I inconsistent with the Constitution and setting aside the National Assembly’s 13 December 2022 decision not to refer the Independent Panel Report to an impeachment committee.

After the judgment, Speaker Thoko Didiza referred the Independent Panel Report to the Impeachment Committee and tasked the National Assembly Subcommittee on the Review of Rules with considering the amendments required to the Rules of the National Assembly in accordance with the court’s findings.

Subcommittee recommendations and debate

Subcommittee chairperson Doris Mpapane tabled the rules committee report on Tuesday evening. She said the rules committee, advised by the subcommittee on rules and Parliament’s legal team, considered two categories of procedure: general rule amendments and detailed procedures for proceedings in the impeachment committee.

According to Mpapane, the committee agreed that detailed procedures should be conveyed to the impeachment committee, as it was best placed to determine how to conduct its inquiry within the context of law and rules. She said the rules committee endorsed the court’s read-in and that the proposed rules clarify the role of the National Assembly in relation to the impeachment committee.

Mpapane noted that the amendments to the general rules will not apply retrospectively and highlighted debate over a proposed requirement that members appointed to the impeachment committee must be “fit and proper.” She said parties agreed members must have the necessary capacity and character to perform parliamentary duties but described applying the “fit and proper” concept within a parliamentary context as difficult.

Reactions in the House

MK Party MP Mzwanele Manyi criticised the committee for perceived delays, saying:

“There is no sense of urgency. It bears noting that the impeachment committee is chaired by a fellow traveller of the so-called GNU (Government of National Unity). Whether by coincidence or by design, the result is simply that two months later, there’s been no inquiry whatsoever. The objective is clear: to string this process along in the hope that the High Court will undermine the Constitutional Court order and achieve what an unlawful vote of this House already failed to achieve. The people of South Africa are being played.”

Impeachment Committee chairperson Makashule Gana said the committee supported the report of rules and responded to Manyi’s remarks:

“I think he’s yearning to be part of the committee. I can talk to the leader of the opposition if he wants to be in the committee,”

Gana added:

“Those that are in the committee know the work that’s happening.”

DA Chief Whip Glynnis Breytenbach said the report sets out the process the committee followed in amending the rules and described the amendments as “fair, certain, and in line with the Constitution.” She said the Democratic Alliance’s proposal to include a “fit and proper” requirement for committee members was rejected and that the rules would empower the impeachment committee to conduct a thorough investigation.

Next steps

The impeachment committee will meet on Wednesday morning to discuss its terms of reference and the appointment of evidence leaders.