President Cyril Ramaphosa has formally objected to the proposed appointment of advocate Thandazani Madonsela SC as chief evidence leader in the impeachment inquiry, arguing his previous dealings with Madonsela and the advocate’s work for the ANC create a potential conflict of interest.
In a letter dated August 18 to National Assembly speaker Thoko Didiza, parliament secretary Xolile George and impeachment committee chairperson Makashule Gana, Ramaphosa said he was making the representations because he believed Madonsela did not meet the requirement that the chief evidence leader has no “real or perceived conflict of interest”.
“I am of the view that advocate Madonsela SC does not satisfy this requirement,” Ramaphosa wrote.
Listen:
The president raised two separate concerns about Madonsela’s appointment.
The first concerns Ramaphosa’s previous appointment of Madonsela to the Judicial Service Commission (JSC).
“It is a matter of public record that I removed advocate Madonsela SC as my appointee to the JSC shortly after the 2022 interviews for the appointment of the chief justice,” Ramaphosa wrote.
There is a reasonable apprehension that advocate Madonsela SC may harbour a sense of grievance towards me and he may act on it
— President Cyril Ramaphosa
The circumstances created a potential perception that Madonsela could hold a grievance against him, he said. “In these circumstances, there is a reasonable apprehension that advocate Madonsela SC may harbour a sense of grievance towards me and he may act on it.”
Ramaphosa’s second concern centres on legal advice Madonsela previously provided to the ANC on matters relating to the impeachment inquiry.
The president referred to ANC secretary-general Fikile Mbalula’s public comments on August 7 explaining why ANC representatives on the impeachment committee had abstained from voting on the recommendation of Madonsela. He pointed to Mbalula’s previous statements that the ANC representatives had abstained because Madonsela had “recently advised the ANC on matters related to the present impeachment enquiry”.
Ramaphosa said he did not know what information had been disclosed to Madonsela or the nature and extent of the advice he had provided to the ANC.
However, he said he understood the ANC had written to the speaker raising concerns about Madonsela’s recommendation because of the legal advice he had previously provided to the party.
The president argued that Madonsela’s previous relationship with the ANC raised a fundamental question about whether he could now take on a role in the same matter.
“Ordinarily a legal practitioner ought not to act in a matter that is substantially the same as one in which he or she previously advised a former client who is involved in that matter,” Ramaphosa wrote.
There is a legitimate concern that he may possess prior insight into issues relevant to the inquiry which any other evidence leader, approaching the matter de novo, would not have
— Ramaphosa
This was particularly important where confidential or privileged information may have been disclosed, he said.
Ramaphosa argued the same principle applied to someone assuming a decision-making or quasi-adjudicative role in proceedings involving a party they had previously advised.
“Equally, a person should not assume a decision-making or quasi-adjudicative role in proceedings concerning a matter in which he or she previously acted for, or advised, a party who is to be directly or indirectly affected by those proceedings.”
Madonsela’s appointment could compromise the integrity of the impeachment process, said Ramaphosa.
“On the information presently available, therefore, it seems to me the appointment of advocate Madonsela SC will violate the above principles. Therefore I submit his appointment should not be confirmed.”
The president also raised concerns about the information Madonsela may already possess as a result of his previous involvement.
“There is, further, a legitimate concern that he may possess prior insight into issues relevant to the inquiry which any other evidence leader, approaching the matter de novo, would not have.”
He framed the intervention as an attempt to prevent the dispute from escalating into further litigation.
TimesLIVE
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.