Politics in Robes: A Political Critique of Maya CJ’s Judgement in EFF v Speaker (CCT 35/24)
The first judgment in Economic Freedom Fighters and Another v Speaker of the National Assembly and Others [2026] ZACC 17 is being read, in the public conversation, as a vindication of constitutional accountability against a recalcitrant parliamentary majority. That reading is comfortable, and it is wrong. It is comfortable because it tracks an emotionally satisfying narrative: a powerful President accused of corruption, a governing party closing ranks, and a Chief Justice who refuses to let the matter rest. It is wrong because it mistakes the form of Maya CJ’s judgment for its substance. The substance, prised free of its rhetorical packaging, is a piece of constitutional politics. The first judgment delivers, by judicial means, a censure of President Ramaphosa that the National Assembly declined to deliver politically. It is not the role of the Constitutional Court to be the appeals branch of a defeated opposition motion. Maya CJ’s judgment treats the Court as though it were.
Three features of the first judgment, taken together, identify what kind of judgment it is. The first is its prosecutorial scene-setting: the lavish recitation of the Phala Phala material before the constitutional question has been formally posed. The second is its construction of an accountability obligation in section 89 that the section’s text does not contain and that its grammar cannot bear. The third is the asymmetric remedy ordered by the Court — a positive Panel finding binds the National Assembly, a negative finding does not. No principled constitutional theory unifies those three features. They are unified by the political result they were designed to deliver. The Chief Justice did not write a constitutional judgment that happened to land on a politically favourable outcome. She wrote a politically favourable outcome and arranged a constitutional judgment around it. The rest of this essay shows that, and explains why it matters.
Begin with the most conspicuous tell. A Chief Justice writing on the constitutional validity of a parliamentary rule does not need to summarise the smell of the alleged crime that produced the parliamentary vote she is reviewing. She especially does not need to do so in the first quarter of her judgment, before the constitutional question has been formally posed. Yet that is precisely what Maya CJ does. Paragraphs [12] to [24] of the first judgment marshal, in the gravest possible register, the Panel’s account of foreign currency hidden inside cushions, of police officials asked to “handle the matter with discretion”, of suspects allegedly paid R150,000 each to buy their silence, of a President who “abused his position as Head of State”. The function of this material is not legal. The function is political. It pre-loads the reader’s moral register before any constitutional principle is articulated, so that when the principle finally arrives — that section 89 must be read as imposing an accountability obligation, and that rule 129I is incompatible with that obligation — any rebuttal feels like a defence of impunity rather than what it actually is: a defence of the constitutional text the National Assembly actually has, as against the text Maya CJ wishes it had.
It helps to state, plainly, what the constitutional question actually was. The Court was asked whether rule 129I of the National Assembly Rules — the rule the Assembly had adopted in response to this Court’s earlier orders in EFF I and EFF II — was consistent with section 89(1) of the Constitution, read with section 55. That is a narrow structural question. It concerns the design of a procedural rule against the requirements of the Constitution’s impeachment framework. It does not, on any characterisation, require a court to assess the strength of the Panel’s findings, the guilt or innocence of the President, or the moral valence of the events at Phala Phala farm. Majiedt J, writing the third judgment in the same matter on the same papers, understood this. His second paragraph — [303] — puts the question as follows: “The central question is whether rule 129I ensures that the National Assembly can effectively discharge its obligation under section 89(1), read with section 55 of the Constitution”. He takes ten words to dispose of the Phala Phala material at [310]: “the merits of the Report… is not the issue here.” A colleague on the same bench, addressing the same case, reached the constitutional question in his second paragraph and had no use for the factual narrative. That contrast is not incidental. It shows that the prosecutorial scene-setting in the first judgment was not compelled by the case. It was a choice.
A judge who writes this way is not performing the function of a court. Prosecutors set the scene; their case stands or falls on whether the reader feels the weight of what was done. Courts are supposed to ask a narrower and colder question: does the law authorise this rule, or does it not? Maya CJ allows the moral register of the prosecutor to do the work that her constitutional analysis cannot. The Phala Phala material is the rhetorical scaffolding of a judgment which, without it, would have to confess that section 89 says “may”, that the word “accountability” appears nowhere in the section, that section 89 confers a discretion on the National Assembly, and that the body that exercised that discretion in December 2022 did so by a majority of 214 to 149. None of those facts changes if the President was guilty. None changes if he was innocent. They are facts about the Constitution. The first judgment cannot bear to leave them alone.
The political character of the first judgment becomes clearer still once one sees what it does with section 89. The textual problem is plain on the face of the section. The word “accountable” appears nowhere in section 89; the section’s operative verb is the permissive “may”; and Kollapen J was right to observe that an obligation cannot be smuggled in alongside a discretion that the very same sentence confers. The political problem follows. Section 89 confers a discretionary power on the National Assembly to remove a President. The drafters used the word “may”. They could have written “must”. They wrote “may” because they understood that the question of removal is an intensely political question, properly answered by an elected body in the political register, not extracted by judicial command from the silences in the text. Maya CJ’s response to that drafting choice is to convert the discretion into a duty whenever, in her view, the political body has exercised the discretion the wrong way. The conversion is dressed in interpretive language — section 89 is to be “read in light of” sections 1(d), 42(3) and 55(2), and so on — but its substance is straightforward: in a case where the Assembly’s vote produced a politically unsatisfying result, the Court will reach behind the vote and locate an obligation in the text that requires a different result. The political effect is to shift the locus of impeachment decision-making away from the National Assembly and toward the constitutional review that now follows every National Assembly decision the opposition dislikes.
If that sounds harsh, consider the remedy. The reading-in ordered by the Court provides that where the Panel finds sufficient evidence, the Assembly is bound to refer the matter to the Impeachment Committee. Where the Panel finds the contrary, the Assembly may proceed regardless. There is no principled accountability theory in which those two situations are different. They are constitutionally identical: in each, a panel has reported, and the political body must decide. To bind the Assembly when the Panel says “proceed” while leaving it free to proceed anyway when the Panel says “do not” is to embed in the constitutional architecture a permanent advantage for those who wish to pursue impeachments and a permanent disability on those who do not. That is not a structural rule. It is an operational instruction. It tells future minority parties in the National Assembly that the Panel’s pen now does the work that they could not do at the despatch box. And it tells the governing party — whichever party governs — that the Constitution has been judicially refitted to deny it the option the Assembly exercised in December 2022. The asymmetry is the political shape of the remedy. It is the shape one would design if one wanted to maximise the political utility of section 89 for opposition parties and minimise it for governing ones. It is not the shape one would design if one were doing constitutional interpretation in a politically blind way.
Notice, too, the shape of the institutional rearrangement the judgment effects. Before EFF v Speaker, the constitutional position was that the National Assembly was the political body to which the Constitution had assigned a political question, and that the Court would intervene where the body acted unlawfully or irrationally — that is, where its conduct, not its judgment, fell foul of constitutional standards. Maya CJ’s judgment quietly inverts the relationship. The Assembly’s judgment itself is now reviewable on a constitutional standard that the Court will supply. The instrument of that review is the manufactured accountability obligation in section 89. Whenever the Assembly votes in a way the Court regards as inconsistent with that obligation, the Court can strike down not merely the vote but the rule that permitted the vote. The Court has, in other words, written for itself a roving commission to police political judgment in impeachment processes. Kollapen J saw this, which is why he was at pains to insist that the same constitutional result could have been reached through a rationality challenge to the vote alone. The first judgment chose the broader weapon. It chose the weapon that strikes not only the present case but the next one, and the one after that. That is a political choice. It enlarges the Court’s domain at the expense of the National Assembly’s.
It is sometimes said in defence of judgments of this kind that they merely give content to the values of the Constitution — accountability, the rule of law, the supremacy of the Constitution itself — and that to characterise them as political is to misunderstand what constitutional adjudication is. The defence has a kernel of truth. All constitutional adjudication is, in a sense, political: it concerns the allocation of authority among the branches of state. But there is a difference between a judgment that takes a constitutional text and works outward from it, even into politically charged territory, and a judgment that takes a politically desired outcome and works backward to a text that can be made to support it. The first judgment is of the second kind. The prosecutorial preamble, the manufactured accountability obligation, and the asymmetric remedy described above are the moves of a judgment that started from its destination. The political question is what follows from that. The answer is that a Court whose Chief Justice writes that way will be relied upon, in the next politically charged case, by the side that lost the political vote. She will be expected to deliver the same favour she delivered here. If she does, she will degrade further the political legitimacy of parliamentary outcomes. If she does not, she will expose the first judgment as a one-off, and one-offs are how Courts lose institutional authority.
There is a second institutional consequence, less remarked but more corrosive. By recasting section 89 as an instrument of executive accountability rather than a discretion to remove a sitting President, the first judgment narrows the political space within which the President can govern. The judgment makes the Section 89 Panel — a body without political accountability of any kind — the de facto gatekeeper of an impeachment. Once the Panel has reported, the Assembly’s role is, on the order, to ratify or to refuse to ratify; and the order makes refusing to ratify a constitutionally suspect act whenever the Panel has found sufficient evidence. This is not, on any view, what the drafters of section 89 had in mind. The Panel was conceived as a procedural filter, not as a political tribunal whose findings, once issued, bind the elected body. Maya CJ’s judgment elevates the Panel into a tribunal in fact, while denying that it is one in form. The political consequence is that future Presidents will be hostage to the Panel’s assessment in a way that the Constitution does not require them to be. The political consequence for the National Assembly is that its members will be reluctant to vote against a Panel’s positive finding, regardless of whether they think the case justified, because to do so is to invite the constitutional litigation that has now been licensed. The chilling effect on parliamentary deliberation is exactly the kind of consequence that judges with proper institutional humility weigh before issuing orders. The first judgment shows no sign of having weighed it.
Defenders of Maya CJ will say that all of this is the unavoidable cost of holding power to account in a country where holding power to account is hard. They will say that the Phala Phala material is part of the necessary context, that the accountability framework is faithful to the Constitution’s basic values, that the asymmetric remedy reflects the asymmetry between investigation and exoneration, and that the Court has done no more than its constitutional duty. Each of these claims can be made. But each is the language of advocacy. They are the things the EFF’s counsel argued in submission. The point of having a Chief Justice is to be capable of resisting the advocate’s frame when the law does not support it. The first judgment does not resist. It absorbs. The Phala Phala material is in the judgment because the EFF placed it there. The accountability framework is in the judgment because the EFF’s case required it. The asymmetric remedy reflects, not constitutional logic, but the political objective the EFF brought to the Court. A Chief Justice who allows her judgment to be shaped this way has, in effect, served as senior counsel for the side that hired the litigation. And it is a posture the first judgment itself betrays: at paragraph [44], Maya CJ describes the EFF’s case as “a shoddy framing of its challenge” — leaving open the question why a litigant whose framing the Chief Justice herself called shoddy received, from the Chief Justice, the judgment that framing required.
It bears emphasising what this essay is not arguing. It is not arguing that Maya CJ was wrong to invalidate rule 129I. The third judgment shows that the rule cannot survive the structural analysis the Constitution invites: it inserts an antecedent question that the Constitution does not authorise the Assembly to answer. That is a complete reason for invalidation, and it is a politically neutral reason. It would apply whether the President were Ramaphosa or his successor, whether the Panel had reported guilt or innocence, whether the political composition of the Assembly were ANC-dominated, EFF-dominated, or coalition-fractured. The criticism advanced here is not that the rule should have stood. It is that the Chief Justice, having available to her the principled structural path that Majiedt J ultimately took, chose the political path instead. She wrote a judgment that vindicates the EFF’s framing, indicts a sitting President in everything but name, and reshapes the institutional balance between the Court and the National Assembly in favour of the side that lost the parliamentary vote. The political cost is that the office of the Chief Justice has been used, in this case, to perform a function the Constitution does not assign to it.
There is also a quieter point worth marking. Kollapen J’s second judgment levelled a series of textual and structural objections that went directly to the foundation of the first judgment’s framework. Maya CJ does not engage with those objections in any sustained way. A Chief Justice who is confident in her reasoning answers her colleague’s arguments. A Chief Justice whose reasoning is doing political work tends, instead, to write past the dissent and trust the institutional weight of the office to do the rest. The first judgment reads as the latter. That, too, is a political posture rather than a judicial one. A court whose senior member declines to engage with the rebuttal that has been placed in front of her by another member of the same bench has lost the discipline that distinguishes a judgment from an advocacy brief.
The first judgment will be read, in the years ahead, as a high-water mark of judicial intervention in the political branches’ management of impeachment. Whether one regards that as a triumph or as a warning depends on whether one believes that the Court’s role is to discipline elected bodies whose decisions one dislikes, or to police the boundaries within which those bodies are entitled to make decisions one might dislike. Maya CJ has come down firmly on the side of discipline. That is a political choice. It would be more honest if it were defended as such, rather than dressed in the borrowed clothes of constitutional inevitability. The clothes do not fit. Underneath them is a Chief Justice who used the apex court’s pen to deliver a verdict the elected body had refused to deliver, and who, in doing so, traded the institutional standing of her office for a result the EFF could not secure at the despatch box. Whatever one thinks of the President, of the Panel, or of the contents of any couch, that is not what the Constitutional Court is for.