MOLOTO MOTHAPO | Speaker, Impeachment Committee are part of the same constitutional project

The criticism directed at the Speaker of the National Assembly, Thoko Didiza, following her decision to file a notice to abide by President Cyril Ramaphosa’s court application has generated more heat than light.

Much of the criticism rests on a false premise: that because the Speaker and the Impeachment Committee have adopted different legal approaches to the president’s application, they must therefore be in conflict with one another.

Nothing could be further from the truth.

At the heart of the debate lies a fundamental misunderstanding of the distinct constitutional roles performed by the National Assembly and the Impeachment Committee established by it.

The Speaker and the committee are not rival institutions pursuing competing objectives. They are part of the same constitutional architecture, performing different but interconnected functions in giving effect to the Constitutional Court’s judgment concerning the Section 89 impeachment process.

The Constitutional Court did not merely issue a judgment. It issued a series of binding directives to parliament. The Speaker’s response to that judgment has been characterised by diligence, urgency and institutional fidelity.

Immediately following the judgment, the Speaker moved to ensure compliance with every aspect of the court’s order. The Independent Panel Report was formally processed through the required parliamentary channels.

The president was furnished with a copy of the report as directed by the court. The process to constitute an Impeachment Committee was initiated. The report was formally referred to that committee. The judgment itself was referred to the appropriate parliamentary structures to process the amendments required to the rules of the National Assembly.

The Speaker further ensured that the necessary procedural arrangements, timelines and institutional support mechanisms were put in place to enable the committee to perform its work effectively, fairly and in accordance with the constitution.

These are not the actions of a Speaker seeking to frustrate the Constitutional Court’s judgment. They are the actions of a Speaker determined to implement it.

Indeed, the Speaker went beyond the minimum requirements necessary to constitute the Impeachment Committee. In establishing the committee, she sought to balance the principle of proportional representation with the imperative of inclusivity.

Rather than adopting a rigid mathematical formula that could have excluded smaller political parties, the committee was structured to ensure broad participation across the political spectrum. The result was a 31-member committee representing all 16 political parties in the National Assembly — arguably the most inclusive parliamentary committee established since the dawn of democracy.

This context is important because it demonstrates the Speaker’s consistent commitment to enabling, rather than constraining, the committee’s work.

The criticism becomes even more difficult to sustain when one considers the Speaker’s response to the president’s initial request that the Impeachment Committee’s work be suspended pending the finalisation of the litigation.

The Speaker declined that request.

Why?

Because the Constitutional Court had already directed that the process proceed. The Independent Panel Report had already been referred to the Impeachment Committee. Most importantly, once the matter had been placed before the committee, the rules of the National Assembly required that the committee be allowed to exercise its mandate independently and without interference.

Had the Speaker wished to frustrate or undermine the committee’s work, that would have been the moment to do so. Instead, she defended the continuation of the process and protected the committee’s institutional independence.

Against this background, claims that the Speaker is somehow siding with the president become difficult to reconcile with the facts.

The criticism also reveals a misunderstanding of what a notice to abide actually means.

In public discourse, abiding is often incorrectly portrayed as surrender, neutrality or indifference. In reality, it can be a legitimate legal strategy designed to assist a court without becoming an active litigant.

In this case, the Speaker has made it clear that her notice to abide will be accompanied by an explanatory affidavit setting out parliament’s constitutional obligations, the steps already taken to implement the Constitutional Court judgment and the institutional considerations relevant to the Section 89 process.

Far from withdrawing from the matter, the Speaker is actively placing before the court information necessary for a proper appreciation of parliament’s constitutional responsibilities.

Different legal approaches do not necessarily imply different constitutional objectives. Courts encounter this reality regularly. Institutions often adopt complementary legal strategies that reflect the different responsibilities they carry within a constitutional framework.

At the same time, the Impeachment Committee has elected to oppose the president’s application. That decision is entirely understandable. The application seeks to halt a process that the committee has been specifically mandated to conduct. The committee is therefore defending its ability to perform the work entrusted to it by the constitution, the rules of the National Assembly and the Constitutional Court judgment.

The committee’s opposition and the Speaker’s explanatory affidavit are therefore not contradictory. They are complementary.

One addresses the matter from the perspective of the committee directly affected by the litigation. The other addresses the matter from the perspective of the institution constitutionally responsible for implementing the court’s judgment.

Together, they provide the court with a comprehensive picture of parliament’s constitutional obligations.

The notion that the National Assembly and a committee established by the National Assembly are somehow at war with one another simply because they have adopted different legal strategies is both illogical and constitutionally unsound.

Committees are instruments of the Assembly. They derive their authority from the Assembly. They exercise powers delegated to them by the Assembly. Their work forms part of the Assembly’s broader constitutional mandate.

The Speaker and the Impeachment Committee therefore remain part of the same constitutional project.

Different legal approaches do not necessarily imply different constitutional objectives. Courts encounter this reality regularly. Institutions often adopt complementary legal strategies that reflect the different responsibilities they carry within a constitutional framework.

That is precisely what is happening here.

The Speaker’s affidavit seeks to assist the court with the broader constitutional and institutional context. The committee’s opposition seeks to protect its ability to continue its work. Both positions are directed towards the same objective: ensuring that parliament fulfils its constitutional obligations, gives effect to the Constitutional Court’s judgment, and allows the Section 89 process to proceed lawfully and fairly.

Much of the criticism directed at the Speaker has also been fuelled by selective references to portions of a leaked legal opinion. Legal opinions are routinely sought by public institutions, private organisations and individuals to assist in evaluating available options, understanding risks and informing decision-making. The purpose of seeking legal advice is not to surrender decision-making authority to legal practitioners, but to ensure that decisions are taken on an informed basis.

In this instance, the legal advice reportedly presented various options for consideration. The Speaker was entitled to evaluate those options alongside other legal, constitutional, procedural and institutional considerations before arriving at a final decision.

To suggest that the Speaker was bound to adopt a particular option contained in a legal opinion is to fundamentally misunderstand both the nature of legal advice and the responsibilities of constitutional office bearers. The Speaker’s duty is not to mechanically implement legal opinions, but to consider them together with all other relevant factors and then exercise independent judgment in the best interests of Parliament and the constitution.

• Moloto Mothapo is parliament’s head of communications and spokesperson