The relevant provisions of the Constitution that deal with removing the president from office are deceptively straightforward. These provisions are set out in Section 89 thus:
“The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of—
- (a) a serious violation of the Constitution or the law;
- (b) serious misconduct; or
- (c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President in terms of a resolution adopted under subsection (1) may not receive any benefits of that office…”
Two of the smaller political parties represented in parliament, the EFF and the ATM, took the outcome of a vote not to impeach President Ramaphosa, taken in the sixth parliament, to the Constitutional Court for it to exercise its allegedly exclusive jurisdiction over two main issues:
Firstly, the constitutionality of the rule parliament made to regulate impeachment proceedings and, secondly, the constitutionality of the vote taken under that rule in which the ANC majority prevailed after all but a handful of its members of parliament voted against the impeachment proceeding to a formal hearing before an impeachment committee of the National Assembly.
The issues and arguments in the case are both complex and novel. The court, understandably so, took an unusually long time to consider the issues in the matter and, in the outcome of the case, divided into three groups (4:4:3) in coming to its decision which took the form of three judgments which it called the first second and third judgments.
Despite its three separate judgments, the Constitutional Court unanimously found that it had exclusive jurisdiction in respect of the challenge to the validity of rule 129I (the rule dealing with impeachment procedures). A majority of the Constitutional Court found that it did not have exclusive jurisdiction over the NA vote, but nevertheless chose to exercise its jurisdiction in the matter. By a majority, the Constitutional Court concluded that rule 129I is inconsistent with the Constitution and invalid; that the NA vote is inconsistent with the Constitution and invalid; and that the Report must be referred to the Impeachment Committee. The Court ordered a limited severance coupled with a reading‑in in rule 129I, pending any amendments made by the National Assembly.
The reading-in was done in order to enable the National Assembly to get on with the tasks involved in the impeachment proceedings by referring the matter to an Impeachment Committee which will deliberate upon and report on the issues set out in the Ngcobo panel of experts report that was before the sixth parliament when it voted, by a majority, not to impeach.
Accountability and the rule of law prevailed in a politically charged dispute, one in which the court heard argument from three silks representing the various respondents, one silk for the ATM and junior counsel for the EFF.
Quality and thoroughness
A spokesperson for the ANC and the president himself confirmed fealty to the rule of law and the Constitution in the wake of the decisions handed down on 8 May 2026. The independence and integrity of the SA judiciary is enhanced by the quality and thoroughness of all three of the judgments.
The case will go down in history, and in the law reports, as EFF3 after EFF1 which finalised the dispute over the non-security enhancements to former president Zuma’s dwelling at Nkandla and EFF2 which settled the need for rules for impeachment proceedings. The willingness of smaller political parties in SA to invoke the Constitution and to litigate its proper interpretation and implementation in the courts is a sign of the good health of constitutional democracy in SA.
“What happens next?” is a frequently raised question. The Speaker and the President are the focus of attention in answering this question.
The Speaker of the National Assembly will now (Julius Malema did so at court immediately after the case was won) be asked to take steps to appoint an Impeachment Panel and to equip it with sufficient resources to acquit itself of the task of looking into the impugned conduct of the President that is the subject matter of the Ngcobo report.
This is a process that should be conducted “diligently and without delay” as is required by the provisions of section 237 of the Constitution. The Panel, once appointed, will consist of a mix of parliamentarians that approximates party representation in the National Assembly. For example, if the panel is ten members strong it will likely have 4 members from the ANC, two from the DA and one each from the EFF and MK parties. The remaining three members will be drawn from the smaller parties, with the ATM a strong contender for a place on the panel, having initiated the whole process.
The President, who is currently approximately two fifths of his way through his second and final term as president of SA, is now faced with the decision whether he resigns or opposes the motion for his impeachment by putting his side of the story up for consideration by the Impeachment Panel (and by the nation, which will, no doubt, follow the proceedings with interest.)
Had to be persuaded
It will be recalled that the President reportedly expressed a desire to resign after the Phala Phala burglary story first broke when Arthur Fraser laid criminal charges against him. The President had to be persuaded not to resign by his colleagues in cabinet and in the ANC. He may be minded to revisit that desire once his own legal team give him advice after holding his own conduct up for scrutiny against the requirements of the Constitution.
Section 96(2) reads as follows:
“Members of the Cabinet and Deputy Ministers may not—
- (a) undertake any other paid work;
- (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;
- (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.”
Moonlighting as a game and Ankola cattle farmer may be the passion of the President, but is it constitutional to do so in the face of the provisions of Section 96(2) (a) as quoted above? The risk of a conflict means that the conflict does not have to arise, the mere risk suffices, as was decided in EFF1.
Doing a large cash dollar denominated deal with a Sudanese businessman on Christmas Day in 2019 and retaining the cash in a couch beyond the thirty days allowed by law surely expose the President to the risk of a conflict as set out in Section 96(2)(b).
The failure to report the burglary, in which the dollars stitched into the couch at Phala Phala were stolen, to the Hawks is a criminal offence under section 34 of PRECCA.
Further embarrassment
Wilder allegations of money laundering and corruption may be advanced by the EFF and ATM, they already do so on public platforms, to the further embarrassment of the President.
In all these circumstances the option of resigning from office and waiving his entitlement to a pension may become ever more attractive to the President as he considers his position and decides upon his way forward from losing the litigation that ended in three judgments of the Constitutional Court on 8 May 2026. If the pension rights are not waived the impeachment hearing will have to proceed.
[Image: https://www.flickr.com/photos/governmentza/54369774877/]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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