Impeachment Committee to consider legal opinion on right to compel Ramaphosa to testify

CAPE TOWN – The parliamentary committee investigating President Cyril Ramaphosa over the Phala Phala scandal is set to consider legal advice on whether it has the power to compel the president to testify before the impeachment inquiry.

The legal opinion, prepared by Parliament’s legal advisers, suggests that Ramaphosa can be summoned if he does not voluntarily agree to give evidence.

The issue is likely to become one of the most consequential procedural questions facing the Section 89 Impeachment Committee, which is tasked with examining allegations of serious misconduct against the president.

Parliament’s legal advice

The legal opinion circulated to MPs argues that Ramaphosa cannot simply rely on the criminal-law principle of the right to remain silent to avoid answering questions in a parliamentary impeachment process.

Parliament’s lawyers reportedly drew a distinction between criminal proceedings and parliamentary proceedings.

According to the opinion, the right to remain silent in criminal matters does not automatically extend to parliamentary proceedings.

The advice further states that, under Parliament’s powers and the relevant legislation, the president falls within the ordinary category of “any person” who can be summoned to give evidence.

That interpretation could have major implications for the inquiry.

Can Ramaphosa refuse to testify?

The legal opinion’s position is that Ramaphosa should first be given an opportunity to testify voluntarily.

If he refuses, the committee could potentially issue a summons requiring him to appear.

This means the legal dispute is not simply about whether the president should be invited to answer questions.

It is about whether Parliament possesses the authority to compel his attendance and testimony.

The parliamentary legal advisers appear to have concluded that it does.

However, this remains subject to the broader litigation surrounding the impeachment process.

Ramaphosa faces questions over Phala Phala

The impeachment process relates to the events surrounding the theft of foreign currency from Ramaphosa’s Phala Phala farm in 2020.

The scandal has raised questions about the source of the money, the circumstances surrounding its storage at the farm and the handling of the subsequent investigation.

Ramaphosa has denied wrongdoing and has challenged the report that forms the basis of the impeachment inquiry.

The president has maintained that the report contains serious flaws.

Why the committee does not want Ramaphosa to testify first

Interestingly, Parliament’s legal opinion also addresses when Ramaphosa should testify.

Some MPs had suggested that the president should be called at the beginning of the inquiry so that his evidence could help determine the scope of the investigation.

Parliament’s legal advisers rejected that approach.

The opinion reportedly says that doing so would effectively reverse the structure of the impeachment process.

Instead, the committee should first gather and assess evidence supporting the allegations before calling Ramaphosa to respond to them.

Ramaphosa does not carry a reverse onus

Another important point in the legal advice is that the president does not have a reverse burden of proof at the beginning of the inquiry.

In other words, the committee should not begin by requiring Ramaphosa to prove his innocence.

Instead, evidence must first be presented concerning the allegations against him.

Ramaphosa would then have an opportunity to answer those allegations as part of a fair process.

That distinction could become important if the committee eventually summons him.

High Court interdict currently blocks oral hearings

There is, however, a significant obstacle.

The committee is currently interdicted from holding oral hearings while legal proceedings concerning the impeachment report are dealt with.

The Western Cape High Court recently halted the committee from proceeding with public hearings into Ramaphosa’s conduct in connection with Phala Phala.

This means the committee’s legal opinion does not immediately translate into Ramaphosa being called to testify.

The court process must still be resolved.

Committee appeals the court ruling

The Impeachment Committee has also moved to challenge the High Court’s decision.

Rather than pursuing a separate appeal, the committee opted to join an application for leave to appeal to the Constitutional Court that had already been lodged by the African Transformation Movement (ATM).

Committee chairperson Makashule Gana said the majority decision to appeal reflected concerns that the High Court’s interdict had interrupted a constitutional process intended to hold the president accountable.

The committee has argued that the ruling has implications for the separation of powers and parliamentary accountability.

The separation-of-powers battle

The dispute has therefore developed into a broader constitutional question.

On one side is Parliament’s responsibility to investigate allegations against the country’s highest elected office.

On the other is the judiciary’s role in ensuring that parliamentary processes comply with the Constitution and the law.

The committee has argued that allowing the court’s decision to stand could create uncertainty around Parliament’s constitutional authority.

Ramaphosa, meanwhile, is challenging the underlying report that triggered the inquiry.

The legal battles could therefore determine not only whether the president eventually testifies, but also how the impeachment process itself proceeds.

What happens if Ramaphosa is summoned?

If the committee ultimately proceeds and decides to summon Ramaphosa, the legal opinion suggests that he would be treated in the same manner as other witnesses appearing before Parliament.

That does not necessarily mean the president would have no legal protections.

However, the parliamentary lawyers’ position is that a witness who is properly summoned cannot simply refuse to answer questions because an answer might potentially incriminate them.

The issue could become another major legal confrontation if Ramaphosa challenges any summons.

The committee faces a difficult road ahead

The latest legal opinion gives the committee a clearer framework for dealing with presidential testimony.

But the process remains heavily contested.

The committee still has to navigate:

• The High Court interdict.
• The appeal process.
• Ramaphosa’s legal challenge to the impeachment report.
• Questions about the scope of the inquiry.
• The evidentiary standard to be applied.
• The constitutional limits of Parliament’s powers.

Parliament’s legal advisers have reportedly recommended that the committee follow the approach used by the Section 194 Committee during the impeachment proceedings involving former Public Protector Busisiwe Mkhwebane when considering the standard of proof.

Why Ramaphosa’s testimony matters

Should Ramaphosa eventually be required to testify, his evidence could become a major moment in the revived Phala Phala accountability process.

The president could be questioned directly about the allegations contained in the report and evidence considered by the committee.

But the process is not equivalent to a criminal trial.

The committee’s responsibility is to determine whether the allegations meet the constitutional threshold for serious misconduct or a serious violation of the Constitution or law.

Any eventual recommendation would then have to go through the parliamentary process.

The bottom line

The latest legal opinion puts Parliament’s position clearly: Ramaphosa may be summoned to testify if he does not voluntarily agree to appear before the Section 89 inquiry.

But that power has not yet been exercised.

The committee remains blocked from conducting oral hearings while the court battle continues, while its appeal seeks to restore the inquiry’s ability to proceed.

The question of whether Ramaphosa can be compelled to testify is therefore no longer merely political.

It has become a constitutional and legal test of how far Parliament’s investigative powers extend when the person under scrutiny is the sitting president of South Africa.