Our Viewpoint | Phala Phala ConCourt judgment

As the Constitutional Court prepares to deliver judgment today in the application brought by the EFF over Parliament’s Phala Phala ruling, the judiciary is once more confronted with one of the most delicate questions in constitutional democracy: where does the authority of one arm of the state end and that of another begin? The EFF is seeking to compel Parliament to reconsider its refusal to initiate impeachment proceedings against President Cyril Ramaphosa over the Phala Phala scandal. At the heart of the matter lies the doctrine of separation of powers — the constitutional principle that the executive, legislature and judiciary must operate independently while providing checks and balances against each other.

On the surface, the case may appear to be about Ramaphosa and Parliament. But a deeper reading reveals that it speaks to the very foundation on which South Africa’s democracy is built. The EFF argues that Parliament failed in its constitutional obligations when it rejected the Section 89 panel report, which found there may have been grounds for impeachment proceedings against the president.

Parliament, in turn, insists that elected representatives exercised their lawful discretion through a democratic vote and that the courts should not interfere in what is essentially a political process. Since the advent of constitutional democracy in 1994, South Africa’s courts have repeatedly been called upon to adjudicate disputes with profound political implications. From the Nkandla judgment to rulings involving parliamentary accountability, the judiciary has increasingly found itself drawn into battles that politicians either failed or refused to resolve politically.

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Critics often accuse the courts of overreach whenever judgments inconvenience those in power. But the judiciary cannot be faulted for performing duties imposed upon it by the Constitution. Equally, courts must remain cautious not to trespass into terrain reserved for Parliament.

The danger of judicial overreach is real — an unelected judiciary cannot substitute itself for elected representatives without weakening democratic accountability. Today’s judgment will therefore be closely watched for how it navigates this constitutional minefield.

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