In the Nkandla saga, Parliament was “inconsistent with the Constitution”, according to the Constitutional Court in March 2016, after it, on the back of the ANC, overturned the Public Protector’s decision and absolved then president Jacob Zuma from repaying anything for so-called security upgrades, including a “fire pool”.

The Phala Phala saga is being handled strictly according to parliamentary impeachment rules. But the ANC, again, is using its majority in the House. Unapologetically so.

Its deployees in the National Assembly would vote against the Section 89 independent panel recommendation that President Cyril Ramaphosa has a case to answer for serious violations of the Constitution related to the Phala Phala forex, the ANC National Executive Committee decided. The reason? He’s taken the report on review to the Constitutional Court.

In legal papers, Ramaphosa asks that the report be declared invalid and set aside because it was “flawed”; the panel had misdirected itself, overstepped its brief and failed its constitutional duties.

“It was also unfair to me because it raised matters to which I was never invited to respond,” says the President, who asked for a decision without a hearing on the papers only.

Throughout, Ramaphosa said he’d done nothing wrong. Still, the panel recommended that grounds existed for impeachment proceedings, also because of “enduring questions” such as the source of the $580,000, roughly R10-million, paid for 20 buffalo.

Some of that became a little clearer when Sky News tracked down Mustafa Mohamed Ibrahim Hazim, who was still waiting for a refund for the buffalo that were never delivered.

The South African Reserve Bank has kept tjoepstil, and the only thing the Hawks recently said was that they have now collected 68 statements.

At Parliament the governing ANC’s majoritarianism – it holds 230 of the National Assembly’s 400 seats – is key to managing this sticky mess.

On repeat is what ANC leaders also told the State Capture Commission – MPs are there because of their party, and that meant toeing the party line.

Finish and klaar. Never mind the commission’s recommendation for measures to allow MPs to keep their seats while following their conscience.

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By voting down the Section 89 independent assessment panel report and recommendations on 13 December, the ANC ends the Phala Phala debacle.

But ANC internal machinations just ahead of its Nasrec elective conference may just interfere.

At hand is sub judice, which although declared defunct by South Africa’s courts is still invoked by those in power to obfuscate matters they do not want to talk to or account for.

As far back as at least May 2017 parliamentary legal advisers have told parliamentarians sub judice was defunct – and Rule 89 only precludes discussion of merits of cases before courts. But ANC MPs have raised it as a shield for ministers, officials and others. That included, in mid-2021, when then health minister Zweli Mkhize was caught in the Digital Vibes Covid-19 communications tender scandal. In November 2021 National Assembly Speaker Nosiviwe Mapisa-Nqakula invoked sub judice to halt Programming Committee discussions on Western Cape Judge President John Hlophe’s removal from office as he appealed against his misconduct finding.

But on 5 December the Programming Committee was again told that nothing stopped MPs from dealing with the Section 89 independent panel report.

No automatic ban can be imposed on Parliament’s constitutional rights and responsibilities.

Section 56 of the Constitution states that Parliament can summon anyone or any document. Ditto, parliamentary Rule 167.

Voluntarily limiting this is dumbfounding. Or just blatant political expediency.

The Rules Committee report that replaced the Section 89 independent panel debate also moved to shield the Presidency.

A decision for an oversight committee for the President – that’s another of the State Capture Commission recommendations – would only be taken once opposition parties showed the gaps in the current parliamentary committees’ oversight on matters falling under the Presidency. No sense of irony. Really. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.