The principle of “fit and proper” came under sharp scrutiny when the National Assembly’s rules committee met to consider the draft rules for the impeachment committee tasked with investigating whether President Cyril Ramaphosa committed serious violations of the constitution and his oath of office, in relation to the theft of foreign currency at his Phala Phala home in Limpopo.
The impeachment inquiry stems from the Constitutional Court’s judgment last month that found parliament acted unconstitutionally in 2022 when the ANC used its majority to vote against a section 89 independent panel report.
The panel found Ramaphosa had a prima facie case to answer over the theft of more than $580,000 at his Phala Phala, Bela-Bela, game farm.
The apex court ordered the panel’s report be referred to an impeachment committee for further investigation. Ramaphosa has taken the panel report on judicial review.
The draft rules presented by National Assembly secretary Masibulele Xaso stated in part that the impeachment committee must consist of “fit and proper” MPs, which quickly became a bone of contention among the legislators.
Former Western Cape judge president John Hlophe, who represents the MK Party in the impeachment committee, was impeached by the National Assembly on February 21 2024, after being found guilty of gross misconduct for attempting to improperly influence two Constitutional Court justices, Bess Nkabinde and Chris Jafta, in 2008 to rule in favour of Jacob Zuma in a corruption case.
EFF leader Julius Malema, who represents the red berets in the impeachment committee, was sentenced to five years’ direct imprisonment for violating gun laws in April, but was granted leave to appeal against the sentence, but the court denied leave to appeal against his conviction.
On Wednesday, DA MP Glynnis Breytenbach said the impeachment committee was not an ordinary committee. “There will be a very high bar for our participation in this committee. We must include the fit and proper principle in these rules,” she said.
ActionSA MP Athol Trollip said: “We should do everything in our power [to include the principle]. This is what the public of South Africa expects of MPs — to be fit and proper. It was [due to] improper conduct by the National Assembly that we find ourselves in this situation, when members voted to protect Ramaphosa. That was unfit and improper [conduct].”
He and other MPs also called for Ramaphosa to appear physically before the impeachment committee.
Exclude the principle
However, EFF MP Natasha Ntlangwini proposed that the principle be excluded until it was properly canvassed: “It needs to be taken out because we don’t agree with the rule as it has been put down. Let’s get more clarity on it. It’s problematic because by virtue of being sworn in by the chief justice, it means you are fit and proper. I plead with you, speaker [Thoko Didiza], let’s put it aside for now.”
ANC MP Mdumiseni Ntuli said it was a fundamental responsibility that MPs met the requirement of being fit and proper. “We agree this [principle] must be inserted now as part of our rules. The impeachment committee must continue, with members of the committee being fit and proper. Matters of interpretation should not be conflated with matters of principle,” Ntuli said.
FF Plus MP Wouter Wessels called for the principle to be included in the rules.
Michael Prince, from parliament’s legal services, said: “Our view, which is supported by two senior counsel that we canvassed, is that this matter should be subject to public participation.”
The rules, however, did not define what fit and proper meant.
ATM MP Thandiswa Marawu said public participation would be a drawn-out process, with her DA counterpart George Michalakis calling for the impeachment committee to have a “higher standard of eligibility [because] not all members are eligible for all committees of parliament”.
Ntlangwini hit back, saying: “What do we mean by fit and proper? The way it’s standing it’s not giving us a full indication, and to say no to public participation is disingenuous advice.”
Breytenbach said she disagreed “very sharply that this process requires public participation. That’s a completely unnecessary process.”
MK Party MP Mzwanele Manyi said that while the principle was important, “it must be removed for now, as it is not defined”, adding it would delay the immediacy of the apex court ruling.
In her summary, Didiza said: “Everybody agrees with the principle; however, the concern is its applicability now, and adopting it without clear definitions of what it means. On the basis of that, the committee needs to make a determination: we go ahead or we send it back to [the rules] subcommittee, or remove it and canvass public participation before bringing it back.”
She proposed that the rules subcommittee, working with parliament’s legal services, “meet soon to define what is fit and proper, and for the principle to be brought to us so when we proceed to go to the House, we are clear what we are recommending to the House, and to look at the retrospective nature of rules”.
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