Cyril Ramaphosa’s farm, Phala Phala. (Leon Sadiki)
The constitutional court has denied President Cyril Ramaphosa direct access to challenge the Ngcobo report which recommended he face an impeachment inquiry to answer charges in relation to the Phala Phala scandal.
In a directive issued on Wednesday, the court said it “has concluded that no case has been made out for exclusive jurisdiction or direct access” and hence the application was dismissed”.
The decision in no way constitutes a ruling on the merits of Ramaphosa’s application to have the report set aside. The president can now turn to the high court. At the time of writing, his legal advisers had not confirmed whether he would do so.
Ramaphosa approached the constitutional court in early December, within days of the release of the report to the speaker of parliament, and after briefly considering resigning.
The report was written by a panel chaired by former chief justice Sandile Ngcobo that was appointed after the African Transformation Movement (ATM) tabled a motion calling for Ramaphosa’s removal from office in light of allegations that arose regarding the theft of foreign currency from his Limpopo game farm.
The president argued that the authors had overstepped their mandate in terms of section 89 of the Constitution and the rules of parliament, notably by not applying a stringent test as to whether the available evidence warranted further inquiry.
The panel interpreted the rules as requiring it to weigh whether there was a prima facie case for the president to answer, and concluded there was on the four charges formulated in the motion.
These were that he violated the Constitution by performing paid work outside his official functions and by giving the head of security detail unlawful instructions to investigate a crime, thrust himself into a situation of conflict between his private interests as a game farmer and his official responsibilities and acted in a manner inconsistent with his office.
Ramaphosa countered that the correct test was whether there was sufficient evidence of serious violations of the law, committed in bad faith.
The panel did not have investigative powers, or the power to verify the information placed before it by the opposition. This consisted in large part of the allegations made by former intelligence chief Arthur Fraser made when he brought the matter to the attention of the police and the public in mid-2022.
In his application to the apex court, Ramaphosa dismissed Fraser’s claims as a combination of hearsay and fiction and said the panel had furthermore failed to apply the correct legal test for admissibility of evidence.
The panel noted at the outset that it could not take Fraser’s allegations at face value but it had trouble accepting Ramaphosa’s version of events. It flagged a number of improbabilities, among them the likelihood that a farm manager would hide the money in a sofa because a large number of people had the keys or code to the safe on the property.
And it asked why, if the money was the proceeds of a livestock sale, the buyer had years later still not collected what he paid for.
“We think that the president has a case to answer on the origin of the foreign currency that was stolen, as well as the underlying transaction for it,” it said.
“There are weighty considerations which leave us in substantial doubt as to whether the stolen foreign currency is the proceeds of sale.”
The report was rejected by the National Assembly in December by 214 votes to 149.
The ATM has asked the Western Cape high court to set aside the vote and order that it be repeated by way of a secret ballot. It argued that the speaker failed to apply the correct legal test when she dismissed its repeated pleas to allow the process to unfold in this manner because ruling party MPs risked censure, or worse, if they were to defy the ANC’s instructions to reject the report.
The high court reserved judgment in the matter earlier this month.
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