Articles

Introduction and Background

On 8 May 2026, the Constitutional Court (“the Court”) delivered a judgment in Economic Freedom Fighters and Another v Speaker of the National Assembly and Others (CCT 35/24) [2026] ZACC 17, addressing the scope and integrity of Parliament’s constitutional obligation to hold the President accountable under section 89 of the Constitution.

The litigation arose from the widely publicised Phala Phala controversy, involving allegations concerning the theft of foreign currency from President Cyril Ramaphosa’s private game farm in 2020, and questions regarding his conduct thereafter.

In June 2022, the African Transformation Movement (“the ATM”) invoked section 89 by requesting the National Assembly to initiate impeachment proceedings. The Speaker appointed an independent panel, chaired by former Chief Justice Sandile Ngcobo, which, in November 2022, found prima facie evidence that the President may have committed serious constitutional violations, misconduct, and breaches of the law.

However, on 13 December 2022, the National Assembly voted against referring the panel’s report to an impeachment committee. This decision, enabled by Rule 129I of the Assembly’s Rules, effectively halted further inquiry.

The Economic Freedom Fighters (EFF), joined by the ATM (“the applicants”), approached the Court seeking to (i) set aside the National Assembly’s vote, and (ii)declare Rule 129I constitutionally invalid.

Core Legal Questions

The case presented two central constitutional questions:

• Whether Rule 129I, which permitted the Assembly to vote on whether to refer a panel report to an impeachment committee, was consistent with section 89; and
• Whether the National Assembly, in declining to refer the report, failed to fulfil its constitutional obligations of accountability, responsiveness, and openness.

The Majority Judgment

The majority judgment of the Court, penned by Chief Justice Maya, found in favour of the applicants on  each of the two central constitutional questions.

The Court held that Rule 129I was inconsistent with the Constitution and invalid.

The defect lay in permitting the National Assembly to terminate the impeachment process at a preliminary stage, even where an independent panel had found prima facie evidence of impeachable conduct. This, the Court held, undermined section 89’s purpose of ensuring meaningful accountability.

The Court emphasised that once sufficient evidence is established at a prima facie level, the Assembly is constitutionally obliged to proceed to a substantive inquiry through an impeachment committee.

The Court further found that the Assembly’s December 2022 vote not to refer the report constituted a failure to fulfil its constitutional obligations.

By declining to initiate a full inquiry despite prima facie findings of Constitutional violations by the President, the Assembly acted irrationally and inconsistently with its oversight responsibilities.

The Order of the Court

The Court, in first judgment, issued a structural and remedial order with immediate and prospective effect:

1. Declaration of invalidity: Rule 129I was declared unconstitutional and set aside.
2. Reading-in: Pending legislative amendment, the Court substituted a constitutionally compliant procedure into Rule 129I.
3. Invalidation of the Assembly’s vote: The decision of 13 December 2022 was declared unconstitutional and set aside.
4. Mandatory referral: The independent panel report was ordered to be referred to an impeachment committee.

The reading-in is especially significant: it effectively removes the Assembly’s discretion to block further proceedings where prima facie evidence exists, requiring referral to an impeachment committee as a matter of course.

Steps Required for Implementation by the National Assembly

Following the judgment, the National Assembly is required to take several concrete steps to comply with the Court’s order and restore constitutional conformity.

Immediate Procedural Steps

In line with the Court’s reading-in and Parliament’s subsequent statement:

• Tabling of the panel report: The Speaker must formally place the independent panel report before the Assembly.
• Notification of the President: The President must be furnished with the report forthwith.
• Referral to an impeachment committee: The report must be referred to an impeachment committee in terms of the Rules.

Establishment of an Impeachment Committee

The Assembly must:

• Constitute an impeachment committee in accordance with Rules 129J–129O; and
• Ensure that the committee conducts a full and substantive inquiry into the allegations, including hearings and evaluation of evidence.

Amendment of the Rules

The Assembly must also:

• Formally amend Rule 129I (and related rules) to align with the Constitution; and
• Ensure that future section 89 processes comply with the principle that prima facie findings must trigger further inquiry, not be subject to political veto.

Ongoing Constitutional Duty

The judgment underscores that:

• The Assembly’s role is not discretionary but obligatory where credible allegations arise; and
• Oversight must be exercised in a manner consistent with accountability, responsiveness, and openness.

Significance of the Judgment

This decision represents a profound recalibration of the relationship between political majoritarianism and constitutional accountability.

First, it limits the capacity of a parliamentary majority to shield the President from scrutiny by procedurally terminating impeachment processes. Second, it affirms the judiciary’s role in enforcing institutional accountability where Parliament fails to meet its constitutional obligations.

Most importantly, the judgment strengthens the integrity of the section 89 mechanism by ensuring that credible allegations of serious misconduct will be subjected to full investigation, rather than curtailed at a preliminary stage.

Conclusion

EFF v Speaker of the National Assembly stands as a landmark authority on constitutional accountability in South Africa. By invalidating Rule 129I and setting aside the National Assembly’s prior decision, the Constitutional Court has reinforced that impeachment is not merely a political process, but a constitutionally structured mechanism that must operate free from arbitrary obstruction.

The National Assembly is now compelled to proceed with an impeachment inquiry in respect of the Phala Phala matter and to reform its rules to ensure compliance with section 89. In doing so, the Court has reaffirmed a foundational constitutional principle: that no public office, including the presidency, is beyond scrutiny where credible allegations of misconduct arise.

Events pursuant to the Judgment

Parliament has publicly confirmed that it accepts and will comply fully with the judgment, and the Speaker (Thoko Didiza) determined the procedural roadmap shortly after the judgment. Furthermore, Parliament has taken concrete procedural steps to revive the impeachment mechanism by tabling of the Independent Panel Report, and the Speaker is to formally table the report in the Assembly records.

The Speaker has undertaken to initiate and establish an impeachment committee in terms of Rules 129J–129O, to which the report will be formally referred for  the Section 89 inquiry.

Because Rule 129I was struck down, the Court imposed an interim “reading‑in” to govern proceedings, Parliament has referred the matter to its Rules Subcommittee to draft permanent amendments aligning with the judgment.

Notwithstanding initially accepting the judgment, affirming respect for the Constitution, courts and the rule of law, and reiterating his willingness to cooperate with lawful processes, President Cyril Ramaphosa has filed an application in the High Court to review and set aside the Independent Panel report itself.

MB is following developments in the now various distinct matters.

Author:
Aristidis Perivolaris – Partner – Dispute Resolution / Litigation