Illustrative image: National Assembly Speaker Thoko Didiza. (Photo: Zwelethemba Kostile / Parliament RSA) | President Cyril Ramaphosa. (Photo: Phando Jikelo / Parliament RSA)
The office of Speaker has long been considered one of the hardest jobs in SA politics, demanding a constant balancing act between party loyalty and the constitutional duty to protect Parliament as an institution.
National Assembly Speaker Thoko Didiza embodies this challenge after deciding not to oppose President Cyril Ramaphosa’s urgent application to halt impeachment proceedings arising from the Phala Phala scandal.
In a statement on Sunday, 21 June, Parliament’s spokesperson, Moloto Mothapo, said Didiza had carefully considered legal advice and the respective roles of the National Assembly and the impeachment committee before deciding not to oppose the application.
“The Speaker, having considered all the views and processes, came to a conclusion that it will be important to file a notice to abide with an explanatory affidavit to complement the committee’s opposition papers and, most importantly, to explain to the court what Parliament has done to comply with the judgment of the Constitutional Court,” he said.
Mothapo said the Speaker believed her approach was “entirely consistent with the respective roles and responsibilities of the Assembly versus those of the impeachment committee”.
He rejected suggestions that the two were at odds, saying: “While the approaches adopted by the Speaker and the impeachment committee in relation to this court application are not identical, they are neither inconsistent nor in conflict. Rather, they are complementary and mutually reinforcing, and reflect their distinct but interconnected constitutional responsibilities within the Section 89 process.”
Her decision has drawn criticism from opposition parties, who argue that as the head of Parliament, Didiza had a duty to defend the institution and the work of an impeachment committee established following the recent Constitutional Court ruling.
Instead, Parliament’s legal opposition to the application has been left to the chairperson of the impeachment committee, a move critics say undermines Parliament’s authority and raises questions about the Speaker’s impartiality.
DA criticises Speaker’s decision
The DA’s parliamentary leader, George Michalakis, said the Speaker was obligated to act in accordance with the wishes of the impeachment committee and defend Parliament’s position before the courts.
“We anticipated that the Speaker would act in line with the request of the impeachment committee. She represents Parliament in all matters in court, and she has to act in line with the wishes of the impeachment committee,” he said.
Michalakis argued that the committee itself did not have the legal standing to represent Parliament.
“The impeachment committee itself, in my opinion, does not have locus standi to be represented in court. They have to go through the Speaker. We said that in the committee itself, and therefore the Speaker should have been the one actually opposing the application on behalf of Parliament, in line with the wishes of the committee,” said Michalakis.
He said the decision had weakened Parliament’s image and suggested it signalled an unwillingness by Parliament’s leadership to defend the institution.
“Well, it’s weakened the image of Parliament at the very least. She can’t outsource her responsibilities as the Speaker to the chairperson of the committee. She has to represent us.”
“It has, in my opinion, indicated that at least the leadership of Parliament is not willing to defend Parliament and our constitutional role. It now gets outsourced to the chairperson of the impeachment committee, who does not have locus standi.”
Michalakis also questioned whether Didiza had acted impartially.
“It does raise alarm bells, and I would have hoped we had turned a page where the Speaker actually acts fully impartially. Her actions do raise the question of who she puts first, the ANC or Parliament, and it feels like more of the same, which is unfortunate.”
ATM cites legal opinion and precedent
The African Transformation Movement (ATM) shared similar concerns. Party leader Vuyo Zungula said he was disappointed that Didiza had chosen not to oppose the application despite obtaining legal advice on the matter.
“It’s really disappointing because the Speaker went and got a legal opinion, and that legal opinion was very clear to say she must defend the integrity and the independence of Parliament,” said Zungula.
“She must defend the work of Parliament from being interdicted, because she’s the head of the institution. She’s the one that is legally obligated to defend Parliament from any threat that seeks to restrain Parliament from doing what it is supposed to do.”
/file/dailymaverick/wp-content/uploads/2024/04/ED_496696.jpg "ATM leader Vuyo Zungula. ( Photo: Fani Mahuntsi / Gallo Images)")
Zungula said the decision was particularly surprising because previous Speakers had defended Parliament in similar circumstances.
“Firstly, there’s precedent. In the [Public Protector Busisiwe] Mkhwebane matter, the Speaker went to defend because she tried to do the same thing, which is seek an interdict,” he said.
“It’s even more in this case because there’s actually a legal opinion. There was a legal opinion for the committee, and there was a separate legal opinion from the Speaker.”
He said it made little sense for the Speaker to seek legal advice using parliamentary resources and then fail to follow it.
“Now, she can’t be going against the advice that she sought after paying and utilising Parliament’s resources for that opinion.”
Zungula suggested that Didiza may have been reluctant to be seen taking on the president of the party of which she is a member.
“Perhaps at a political level, she would not then go to court and challenge, or be seen to be fighting, the president of her organisation,” he said.
Referring to former Speakers Baleka Mbete and Nosiviwe Mapisa-Nqakula, he added: “One would have hoped that she would have learned from Mam’Baleka and Mam’Nosiviwe that she can be useful now, but as soon as she’s out of power, she’s going to be alone, and she might speak about how she took wrong decisions whilst being Speaker.”
Mapisa-Nqakula resigned as Speaker in 2024 amid allegations that she solicited bribes totalling R4.55-million between 2017 and 2019. Mbete was often criticised for decisions seen as favouring the ANC during former president Jacob Zuma’s presidency.
Last month, Mapisa-Nqakula revealed that the ANC abused its power when it instructed its MPs to vote against the Section 89 panel report on the Phala Phala matter in 2022, despite findings that Ramaphosa may have a case to answer.
Constitutional battle
At the heart of Ramaphosa’s application is his argument that the impeachment committee should not begin its work before the courts have ruled on his application to review and set aside the Ngcobo Panel report, which found there was sufficient evidence for Parliament to consider impeachment proceedings.
/file/dailymaverick/wp-content/uploads/2022/12/Church-Cyril_2.jpg "Retired Chief Justice Sandile Ngcobo, who chaired the panel that concluded there was prima facie evidence that President Ramaphosa may have committed serious violations of the Constitution and anti-corruption laws. (Photo: GCIS)")
In his affidavit, Ramaphosa argued that allowing the process to proceed before the review application is finalised could defeat the purpose of the court challenge.
“If there is a serious and substantive challenge to the validity of such a determination in the report, as there is in my case, it should be determined before the enquiry commences,” he said.
According to the President, permitting the impeachment process to continue while the review is pending could leave the courts unable to provide effective relief if they later rule in his favour.
The argument has been strongly disputed by Zungula, who is opposing the application.
In his affidavit, Zungula argued that Ramaphosa’s concerns are misplaced.
“The fundamental basis of this application — the President’s perceived harm — is misplaced. The President has no basis to fear that his dignity and reputation will be undermined by members of the committee or the impeachment process generally,” he stated.
Zungula said the purpose of the committee is to test the allegations against the President rather than assume wrongdoing.
“The purpose of the committee is to test whether the allegations against the President are ‘unfounded’. The rules give it the tools to do so — that is its very function.”
He added that the committee is required to establish “the veracity and seriousness” of the charges and therefore there is no basis for the process to be halted while the review application is pending.
The EFF is also opposing the application, which is expected to be heard on 15 and 16 July. DM