President Cyril Ramaphosa’s protectors: Madonsela, Murphy and Phosa

Former public protector advocate Thuli Madonsela, retired judge John Murphy and former ANC treasurer general Mathews Phosa are some of the legal minds whose opinion ultimately convinced President Cyril Ramaphosa to take the section 89 panel report on review on Monday. 

According to Gwen Ramokgopa, one of Ramaphosa’s closest allies, the president’s decision on whether to resign was down to the wire. 

But another hurdle is in Ramaphosa’s way and his allies are readying the forces. Speaking to the Mail & Guardian separately, ANC national chairperson Gwede Mantashe was clear that the president’s allies would back him during the parliamentary sitting next week to decide whether Ramaphosa should be impeached, and that ANC members who did not toe the line would face disciplinary action.

Ramakgopa and Mantashe spoke about a week after the publication of the section 89 panel report, which found that there was prima facie evidence to start an impeachment process against Ramaphosa over the handling of the 2020 theft at his Phala Phala game farm.

The report sent the president’s allies into a tailspin last week as calls for him to resign intensified from opposition leaders and his detractors in the ruling ANC. 

Ramokgopa, who is part of the ANC top six as the coordinator in the secretary general’s office, said the president and his closest allies had feared the worst last week.

“When we looked at the report and the recommendations, we thought that, wow, there is indeed something to answer for,” she said, adding that Ramaphosa had indicated that he was “prepared to step aside”. 

Ramokgopa said Ramaphosa was convinced to take the report on review after considering the legal opinions expressed by Madonsela, Phosa and Murphy. 

“The president was prepared to resign but when we looked at a number of reviews by jurists, eminent people, you know, judge Murphy, Madonsela, the previous TG [treasurer general] of the ANC, and many others, they were saying this is not something that a president should be asked to step aside for,” she said.

“There are so many flaws in law, there are so many flaws procedurally. We had to also listen to what South Africa is saying and what experts are also saying over and above what the president wanted, because it is not about him, leaders are not about themselves.” 

The three legal minds have taken issue with the report, with Phosa calling it scant. Phosa told the M&G although he had not consulted Ramaphosa on what to do, he had sent the president his opinion. 

An internal memorandum at law firm Phosa Loots Attorneys, where Phosa is a director, argued that, based on the panel having had no verbal evidence or proper sworn affidavits presented to it, it could not have arrived at the conclusion that there is a prima facie case against Ramaphosa.

“Prima facie is defined as an adjective meaning ‘sufficient to establish a fact or raise a presumption unless disproved or rebutted’,” the document said. 

In an opinion on his Facebook page, Murphy said there was a reasonable prospect that a court may conclude that the panel headed by former chief justice Sandile Ngcobo had erred and misdirected itself. 

“It is probably premature to call on the president to resign when it seems possible that the findings of the panel may be set aside. 

“In so far as many are making claims of corruption, money laundering, exchange controls and tax violations, no such case has been brought against the president and he has not had an opportunity to put up a defence in that regard. 

“To seek to condemn him on this basis is unfair, especially in light of the rather dubious provenance [former spy boss Arthur Fraser] of the allegations,” Murphy wrote.

Efforts to trace Murphy’s contact details were unsuccessful. 

Madonsela told the M&G that she had not consulted Ramaphosa, but that the panel had erred in its interpretation of section 89 of the Constitution by lowering the threshold for determining whether a president needs to be impeached. 

“Rule 129G states that the panel ‘must make a recommendation to the speakers, within 30 days, whether sufficient evidence exists to show that the president committed a serious violation of the Constitution’. The panel, in violation of Rule 5 of National Assembly rules, changed its mandate to ‘sufficient information’.” 

Madonsela added that if the public were to accept the panel’s interpretation of section 34 (1), then most of the country was in breach.

“It also means many closed cooperation owners that are not reporting any corrupt transaction in 34(1)(a) are in breach. That’s irrational and unjust. But even if it was correct in its limiting reporting directly to the DPCI [Directorate for Priority Crime Investigation] it could have given the president the benefit of doubt and considered the violation as ordinary due to mistaken interpretation,” she said. 

Ramokgopa said South Africans should appreciate that Ramaphosa was prepared to step down. 

“Many eminent people have advised him to await the outcome of the review. If tomorrow, the ANC advises him to step aside, yes he will. If parliament or any other institutions says step aside or step down, will he do that, I don’t think he will resist. 

“We need leaders that are like that, that we know will not cling to any position, especially if they have to account on their personal matters,” she said.

Ramakgopa’s words could be tested as early as Tuesday when parliament debates whether Ramaphosa should face an impeachment inquiry. His detractors in the ANC are said to be lobbying MPs to vote with the opposition after ANC’s national executive committee (NEC) resolved to reject the report in parliament. 

ANC MPs Supra Mahumapelo and Mervyn Dirks have already indicated that they will vote for the impeachment process to go ahead. 

But Mantashe told the M&G that party members will be expected to toe the line and reject the report. 

“MPs of the ANC must be loyal to the ANC … I was a secretary general, I, on many occasions communicated things I disagreed with, with passion, okay. That is loyalty to the organisation. If you don’t then you don’t need an organisation. You can have free will. Even if there is a constituency system, in that constituency system as an ANC constituency rep, I will toe the line of the ANC. It’s a rule. We have a party political system and therefore people are members of the party and they go there and defend the party.” 

Dirks told the M&G he expected 42 ANC MPs to vote in favour of the parliament report in an open process — and that 93 had confirmed they would vote with him if the vote was held by secret ballot. 

“The state is made up of three arms — the executive, the judiciary and parliament. Running to the constitutional court even before parliament can do its work is legal thuggery and a serious interference by the head of the executive in our oversight role. We will definitely play our oversight role on Tuesday,” he said. 

Mantashe said he was not worried by the statements by Dirks and Mahumapelo, who he said had consistently called for Ramaphosa to step down and expressed a “terrible, negative view outside of the system”.

He said the ANC leadership would have discussions with the parliamentary caucus and deliver a firm message regarding those who intend to “break away”. 

Mantashe pointed to a similar internal tussle around the impeachment of former president Jacob Zuma, when party leaders told ANC members: “Listen, we are MPs of the ANC, we will toe the line of the NEC.”

“If Mahumapelo, Dirks and whoever say they will not toe the line it’s okay,” Mantashe told the M&G. “We will do what we should do, we will go to the caucus, discuss with the caucus and make a decision. People who defy it, if they say so they will be dragged to the disciplinary process.”

ANC MPs could not vote with their conscience — as opposition parties have urged — because they were agents of the ANC, he added.

“We exert our authority when we put them on the ANC (parliament) list. You get onto a list, you call that list an ANC list. You are not contesting the constituents that you have won, you are on the list of the ANC. At that point in time you’re an MP of a political party. You’re not a free agent.” 

Reacting to Mantashe, Dirks said he was “resolute” about upholding his oath of office to act in the best interest of South Africans, adding that if the rules were applied fairly, Derek Hanekom, Mondli Gungubele and Pravin Gordhan must also be disciplined for having allegedly voted with the opposition in a motion of no confidence against Zuma. 

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