President Cyril Ramaphosa’s decision to take the Section 89 independent panel report on judicial review has sparked debate.
Framed by the Presidency as a lawful exercise of due process rights, the move has been criticised by opposition parties and civil society, who see it as an attempt to delay accountability.
The EFF has labelled Ramaphosa a “constitutional delinquent”, accusing him of hiding behind court proceedings to evade an impeachment inquiry.
But beyond the political rhetoric lies a more fundamental question: would such a review application actually survive judicial scrutiny?
Based on a sober assessment of South Africa’s administrative law and constitutional principles, the answer is almost certainly no. The hurdles are not merely procedural – they are structural, jurisdictional and fatal to the application.
The immediate obstacle is time. A review application under the Promotion of Administrative Justice Act must be brought within 180 days after a litigant becomes aware of the administrative action in question.
That is a statutory requirement, not a flexible guideline. Where a litigant misses this deadline, a formal, standalone condonation application must be filed – and it must be filed in the founding papers.
Courts have consistently held that condonation cannot be raised belatedly; failure to launch a formal condonation application results in the entire review being dismissed.
The Section 89 panel report was published in 2022. Ramaphosa has been aware of its contents and its findings since its release. Yet, no review was pursued to finality at that time.
On the contrary, he abandoned his earlier legal challenge after the ANC used its parliamentary majority in December 2022 to bury the report.
That political manoeuvre was subsequently declared unconstitutional by the Constitutional Court (ConCourt), which held that parliament acted irrationally when it voted to reject the report.
Now, after the court has revived the impeachment process, Ramaphosa seeks to revisit a challenge he abandoned four years ago.
The uMkhonto weSizwe (MK) party, EFF and African Transformation Movement have correctly noted this conduct demonstrates a pattern of evasion rather than a genuine pursuit of legal clarity.
Any court confronted with such a timeline – nearly four years after the report’s publication – would demand an exceptionally compelling explanation for the delay.
Beyond the procedural deficiencies, the legal viability of the review application faces two even more fundamental problems
First, the Section 89 panel report is not a court decision, nor is it a decision by a public official subject to review.
It is a manifestation of the accountability process provided for in the constitution itself. The exercise of such powers is undertaken by a distinct arm of government – parliament – charged with the responsibility of exercising oversight and accountability as a separate organ of state.
The panel’s task was deliberately narrow: to determine whether there is a prima facie case for Ramaphosa to answer.
That is not an adjudication of guilt but a preliminary factual assessment. There is no right of cross-examination, no standard of procedural fairness beyond basic rationality and no entitlement to protections reserved for criminal or disciplinary proceedings.
The impeachment process – the very process where the president would state his story and defend his version – is precisely where full procedural protections would apply.
Challenging the preliminary panel’s findings as if they were a final judgment misunderstands the architecture of Section 89.
Second, and more decisively, courts have consistently shown reluctance to intrude onto the terrain of parliament.
The principle of separation of powers is not an abstract doctrine – it is a binding constitutional constraint.
The ConCourt has already ruled that impeachment must proceed “unless and until the report is set aside on review” – but that qualification does not create a jurisdictional basis for review where none exists.
Beyond the legal analysis, a broader question lingers: where are the voices of those who built their reputations defending constitutional accountability?
Where is Organisation Undoing Tax Abuse, Accountability SA, Freedom Under Law, Corruption Watch? Where are the senior civil servants who signed letters of complaint during the Jacob Zuma years? Where are the legal academics, the public intellectuals, the foundations dedicated to truth and integrity?
Corruption Watch has welcomed the ConCourt judgment, but where is the unequivocal demand that the impeachment process proceed without delay?
The DA has called for a fast-tracked review, but has stopped short of condemning the review application as an abuse of process.
The silence from many who were vocal during the Zuma era is deafening. It raises an uncomfortable question: do standards of accountability change when the accused is Ramaphosa?
The Phala Phala matter strikes at the heart of public trust in the Presidency and the integrity of constitutional governance.
If the same individuals and organisations that demanded Zuma’s head now remain silent – or content themselves with procedural niceties – they risk betraying the very principles they claim to uphold.
Constitutional accountability cannot be selective. The rule of law does not bend based on political convenience or personal loyalty.
