Skin in the game: President Cyril Ramaphosa is facing a legal bid by the EFF to force parliament to impeach him over the Phala Phala scandal. (Photo by Buda Mendes/Getty Images)
Well into Tuesday’s hearing of the Economic Freedom Fighters’ legal bid to force parliament to impeach President Cyril Ramaphosa, justice Owen Rogers raised questions that stubbornly remain about the theft of foreign currency from his Limpopo game farm.
It was the conclusion of the independent panel appointed by parliament to weigh evidence against the president that, on the face of it, there was an attempt to conceal the origin of $580 000 stolen from a sofa on his farm, Rogers recalled.
“It is clear the panel believed, at least on the information submitted to it, that it did not accept that the money had come from the sale of buffalo,” he noted in an exchange with advocate Tembeka Ngcukaitobi, appearing for the ANC.
The undisputed evidence included that the equivalent of R8.7 million was never banked, although this meant the president forfeited about R2 200 a day in interest, he noted.
“You don’t just leave that money either in a safe or under a sofa. It is common cause that it wasn’t banked and was hidden in a sofa.”
Nor was the theft reported to the police but merely to the head of the president’s protection unit, Major General Wally Rhoode, who launched a covert investigation to recover it.
“Just as a matter of common sense, if a person loses R8.7 million, they would want to know who the investigating officer is and has it been reported to the police? Is there a case pending? And it is common cause that there wasn’t.”
All of the above — facts that counsel for the African Transformation Movement earlier called the “elephant” in the court room — had led the panel to suspect that the source of the money was not legitimate and that there had been an attempt to conceal this, Rogers continued.
“I assume that you accept that, if there was prima facie evidence of that, that would be prima facie evidence of extremely serious misconduct?” he asked.
The question came after Ngcukaitobi insisted that the National Assembly had acted rationally when, in December 2022, it voted by 214 votes to 148 to reject the recommendation of the panel, chaired by former chief justice Sandile Ngcobo, that the president face an impeachment trial to answer to four charges relating to the source of the stolen cash and the clandestine efforts to recover it.
The EFF wants the constitutional court to set aside the decision that saw Ramaphosa survive to claim a second term as ANC president and to substitute it with an order that the National Assembly proceed to an impeachment trial.
It is also asking the court to declare unconstitutional rule 129I of the legislature’s rules on impeachment, which allows the National Assembly the discretion to decide whether to impeach the president, after considering the panel’s findings.
The case hinges, in the main, on whether the chamber was within its rights to reject the report as flawed on the basis that the panel had misread its mandate.
The EFF contends that the Ngcobo panel acted within its remit because it rightly believed the standard for impeachment was whether there was, on the information before it, a prima facie case for the president to answer on charges of serious misconduct or breach of the law.
Ramaphosa’s lawyers argue that the test is a more stringent one of “sufficient”, rather than prima facie, evidence. But the EFF’s counsel Kameel Premhid told the court that, in law, this distinction is more fluid than they submit and that, in many cases, the two could turn out to be the same thing.
Rogers asked Ngcukaitobi what he, as a lawyer, thought was the difference between sufficient and prima facie evidence.
“What would you understand the precise difference to be between, let’s assume for the moment it amounts to evidence, it amounts to prima facie evidence as opposed to sufficient, what do you say is the lower test which has been impermissibly slipped in?”
Ngcukaitobi suggested that they were talking at cross purposes and that, in this instance, the distinction was best explained by reference to parliament’s rules themselves.
“I am saying the finding that must be made by the panel is sufficient evidence. If the panel erroneously fails to make that finding, that is sufficient to vitiate its report,” he said.
“My primary point is that, from the perspective of the MPs that were voting on the report, what they needed to look at, which was what was being debated, was did the panel act within terms of reference?”
The ANC concluded that the panel had not and ordered its members to vote down the report.
The EFF argued that this saw the National Assembly, where at the time the ANC held an outright majority, forsake its constitutional obligations for the political objective of protecting the president.
Ngcukaitobi denied that the ANC caucus had been coerced and that the evidence demanded that its members endorse the report.
“It may be that, one day in a criminal case, the president will have a criminal case to answer. It may be that, one day in a different case that comes before the National Assembly, the ANC will take a different position,” he said.
“But on this report, in these findings, the National Assembly was perfectly rational in arriving at the decision it did.”
Counsel for Ramaphosa and the ANC also argued forcefully that the panel had failed to apply the legal framework for the admissibility of hearsay evidence and erred by considering former intelligence chief Arthur Fraser’s allegations that the stolen forex was a donation from foreign states, not a down payment on Christmas Day cattle sale.
The panel was the first of its kind to be appointed in terms of rules parliament adopted in 2018 to regulate the removal of a sitting president by the National Assembly in terms of section 89 of the Constitution.
The rules were written in response to the apex court’s 2017 ruling in Economic Freedom Fighters and Others vs Speaker of the National Assembly and Another.
That case saw opposition parties turn to the courts in frustration at parliament’s failure to sanction then president Jacob Zuma for breaching the Constitution by ignoring the public protector’s findings on the Nkandla scandal.
It is evident from the Ngcobo report that the panel mulled over its mandate before deciding that it was to look at the overall scheme for impeachment and consider whether, on the information before it, the president had a case to answer.
“We therefore construe the phrase ‘whether sufficient evidence exists’ to mean whether, based on the information received, the president has a case to answer,” the panel wrote.
“Put differently, we construe the phrase to require the panel to determine whether there is a prima facie case against the president. In the context, ‘evidence’ must be construed to mean information referred to in the rules.”
Questions from the bench on Tuesday suggested that the EFF was facing an uphill battle to persuade the court to put itself in the shoes of the National Assembly and substitute its decision to reject the report with one to impeach the president.
But exchanges with counsel equally suggested scepticism that the findings of this panel, or a future panel, could be disregarded merely because of conflicting interpretations of its mandate.
Justice Mbuyiseli Madlanga pointed advocate Geoff Budlender, appearing for Ramaphosa, to the passage in the Ngcobo report where the panel concluded that it had been entrusted with the power to conduct a preliminary enquiry to ensure that the president was not subjected to a full-scale impeachment process for frivolous reasons.
“It is a momentous act justified only when sufficient evidence — your preferred phrasing — when sufficient evidence exists to show that the president has a case to answer for his conduct,” Madlanga quoted and asked what was objectionable in that reasoning.
“The problem is the next sentence,” Budlender replied.
The panel proceeded to say that it served as a “filter to ensure that only a motion which establishes prima facie that the president has a case to answer is considered by the impeachment committee”.
Madlanga said that surely all that the panel said on the subject must be read cumulatively.
“The difficulty, Justice Madlanga, with due respect to the panel, is that it mixes up two concepts that are quite distinct,” Budlender countered.
Rogers wondered whether it would not be better for parliament to refer a report about which it had reservations back to the panel to remedy the perceived defect.
“Is the right way to proceed for parliament to simply reject the report?” he asked Budlender.
“In this case, if the MPs thought the panel had applied a lower standard of prima facie evidence, assuming that in the context of the report that was truly a lower standard than sufficient evidence, isn’t the answer that the panel must then be required to answer the question: ‘Do they find that there was sufficient evidence?’”
Rogers conceded that this might not be how the EFF framed its application but that the question was worth answering, at least for future instances where a president is accused of impeachable misconduct.
“We may need to consider what happens in this type of situation, whether in this case or the future,” he said. “It seems to me completely contrary to the notion of holding the president to account that the panel’s report becomes a game of forfeits that if you can trawl through the report and find something where it has misdirected itself that it is the end of it.”
Budlender admitted if the EFF had come to court asking the assembly to send the matter back to the panel “to have another shot”, this would have been a very different case.
Perhaps, he said, it would be helpful if the court were to indicate in its judgment that the consideration by the assembly of the findings of a section 89 panel does not have to end in an all-or-nothing decision but that there was the third option of referring it back to the panel.
“That might facilitate the resolution of future disputes about impeachment.”