/ 4 June 2024

Concourt agrees to hear EFF challenge on Phala Phala

Cyril Ramaphosa’s farm, Phala Phala. (Leon Sadiki)

In one of the many ironies of politics, the constitutional court has agreed to hear an application in which the Economic Freedom Fighters (EFF) begs that President Cyril Ramaphosa face impeachment over the Phala Phala scandal just days after it pronounced itself ready for coalition talks with the ANC.

In a directive issued on Monday, the apex court asked the EFF and the respondents — the president, the speaker, the National Assembly and all parties represented in it — to file written arguments by 19 July and 26 July respectively.

The case will revisit a report that found Ramaphosa had, on the face of it, a case of serious misconduct to answer in relation to the origin of forex stolen from his game farm and clandestine efforts to recover it. 

According to Ramaphosa, the stolen sum was $580,000 paid in deposit for buffalo by a Sudanese buyer and hidden in a sofa by an employee. 

The report, written by a panel chaired by former chief justice Sandile Ngcobo, apparently drove him to the brink of resignation before he decided to take it on review in the constitutional court on the basis that the panel had misread its mandate and impermissibly relied on hearsay from former spy chief Arthur Fraser.

He argued in his application that the panel could not place a reverse onus on him to refute Fraser’s claims, which included that the money was donations from African and Middle Eastern countries smuggled into South Africa by Ramaphosa’s former special adviser, Bejani Chauke.

“An absence of evidence is not evidence of absence. The panel’s approach reduced to this: anything I did not answer is prima facie true,” the president argued.

The panel had conflated the meaning of “prima facie evidence” and “sufficient evidence”, where the latter was the more stringent and correct test.

The ANC majority in the National Assembly voted overwhelmingly to reject the Ngcobo panel’s findings, and when the apex court subsequently denied the president direct access, he let the matter lie instead of turning to the high court. 

In a founding affidavit filed in mid-February, the EFF argues that the National Assembly’s rejection of the report was irrational because the facts, and the rules of parliament, left no room for a reprieve for Ramaphosa.

Sparing him an impeachment inquiry offended against 11 provisions of the Constitution, in particular the obligation on parliament to hold the executive to account.

The EFF is asking for the exceptional remedy of substitution. In the alternative, it wants the court to refer the report back to the chamber for a fresh vote.

In the founding affidavit, EFF leader Julius Malema said Ramaphosa had no reason to cooperate with the panel as there was no real risk of being held accountable because the ANC would “abuse its majority to protect him”.

He added that this was precisely what happened, as foreshadowed by ANC chairperson Gwede Mantashe’s warning to members that those who defied a three-line whip would face expulsion.

“Notwithstanding that such a statement runs contrary to the very oath all MPs take, it demonstrates a concerning attitude that the majority party will use its numerical strength to politically exonerate and protect its leader despite the legal cogency of the case that the president must answer.”

What transpired was another example of parliament failing to perform its constitutional duty, adding to those Chief Justice Raymond Zondo had listed in his report on state capture, Malema continued.

Whereas Ramaphosa disputes the panel’s interpretation of its remit as recommending impeachment on the basis of prima facie evidence, Malema takes this as the correct view and builds his case on the argument that while the panel’s findings are not binding, its mandate by extension defines that of MPs when considering those findings. Hence they can only reject the report if they believe the panel is wrong on there being a prima facie case.

“On a proper interpretation, the National Assembly could only have voted down the report if no prima facie case was made against the president.’’

Instead, he said, the assembly reached for an “extraneous issue to justify its vote”.

Malema argued that the rule must be amended because it was susceptible to such abuse.

As it stood, it was unlikely that any case against a sitting president would come before an impeachment committee because the parliamentary majority would contrive cause to reject it and use “party discipline” to compel members to vote accordingly. 

“The executive will never be held accountable, even in circumstances where the evidence suggests otherwise.”

The EFF proposed leaving the consideration of a report to the speaker, who would do so on the narrow basis of whether the panel found prima facie evidence against the president. If so, the speaker must refer the matter to an impeachment committee. If not, he or she would simply inform the National Assembly accordingly.

The Ngcobo panel found prima facie evidence on each of the four charges raised in complaints of misconduct.

The first was that Ramaphosa undertook paid work outside the scope of his official duties. 

The EFF said the prohibition on doing so, in section 96(2) of the Constitution, was an absolute one and the panel’s conclusion that whether his game farm was turning a profit was irrelevant, was correct. 

Ramaphosa’s own explanation as to the origin of the stolen money made clear that he was involved in the operations of the farm because he referred to “discussions about disposing of buffalo that were sub-standard” he had with the farm manager.

Likewise, Malema argued, the panel concluded on the basis of common cause averments that Ramaphosa had a case to answer on the second charge of breaching section 34 of the Prevention and Combating of Corrupt Activities Act, which compels any person in a position of authority to report the theft of more than R100,000 to the police.

Ramaphosa reported the incident to the then head of his protection unit, Wally Rhoode, who embarked on an investigation but never reported the theft to a police station and no docket was ever opened.

On the third and fourth charges, the panel found that it was possible that the president behaved in a manner inconsistent with his office and exposed himself to a situation involving a conflict between his official responsibilities and his private business. 

The EFF said Ramaphosa must have known that he was abusing his power by asking Rhoode to investigate the theft, and asking for help from his Namibian counterpart in apprehending the suspects.

“The president might or might not have a defence to the charges,” Malema submitted.

“Yet until there is a thorough adjudication by the impeachment committee of the fact-finding process concluded by the panel where the president is afforded the opportunity to present his defence, the inference is inescapable that he is guilty.”

Ramaphosa’s answering affidavit dismissed the EFF’s case as “meritless”, and argued that it did not engage the exclusive jurisdiction of the apex court.

The EFF’s claim that the National Assembly had failed to carry out a constitutional duty was a Trojan horse to gain direct access in terms of section 167(4)(e) of the Constitution, his attorney Peter Harris wrote.

But it must fail because it did not make out a case that the chamber failed to fulfil a duty that was specific to it. 

It was best challenging the rationality of a decision taken by the assembly after complying with its constitutional obligation under section 89 to appoint a panel to consider a complaint of misconduct against the president. But the mere fact that the EFF did not like the outcome did not mean the assembly had failed in its constitutional duty. 

And, Harris recalled, the president was denied direct access when he wanted to challenge the Ngcobo report.

The EFF runs into difficulty at the outset because it tries to bypass the rules parliament adopted to give effect to its duty in section 89 to hold the president to account, and to mount a challenge directly in terms of the Constitution.

This, he said, explained its attack on the section 89 rules.

But there is a fundamental problem with this in that section 89 does not compel the National Assembly to remove the president even if one or more grounds for removal are established.

“Once the Constitution itself makes the removal of the president discretionary by adoption of a resolution, it necessarily authorises members of the National Assembly to vote on the matter,” he said

“In voting all options are open to a member — being a positive vote in support of a step towards removal of the president, a negative vote against such a step and an abstention — all are equally competent.”

Therefore, Harris stressed, none can be claimed to be irrational.

As for the EFF’s complaint that the outcome of the vote was politically influenced, this was naive, he said. All parties represented in the National Assembly, not only the ANC, are creatures of political influence.

“It speaks for itself that such a controversial decision taken by the National Assembly will always be politically influenced.” 

The obvious fault lines in the EFF’s application explained why it tried to return to the merits of the panel’s findings and was trying to get the highest court to endorse these, Harris said.

But even if those findings were unassailable, which Ramaphosa disputes, this would not help the EFF because the National Assembly still held a wide discretion as to whether it accepted or rejected its report.

Its members were exercising their powers on behalf of the people who elected them and when they strayed and acted in a manner that was not consistent with the will of the electorate, the remedy was for voters to punish them.

“That is not a matter for the courts.”

Turning to the panel’s report, Harris reiterated that it was fundamentally flawed.

The section 89 rules made plain that the president could only be removed for intentional or malicious conduct in bad faith, and that rule 129G(1)(b) stipulates that the panel must find “sufficient” evidence exists of such a violation of the law.

In its work, the panel was confined to considering “a clearly formulated and substantial charge” put forth in a notice of motion. There is a threshold requirement that this charge must show a prima facie case, otherwise it does not get out of the starting blocks.

But this cannot be conflated with the work of the panel, which must find “sufficient evidence to warrant an impeachment process. It requires more than a prima facie case,” Harris said.

Early in the report, the panel interrogated its mandate and embarked on an interpretation of the rules that have been in place since 2018 but have never been applied before. It concluded that in the context of its work sufficient evidence meant whether the president had a case to answer.

“Put differently, we construe the phrase to require the panel to determine whether there is a prima facie case against the president.”

It stressed that its limited powers did not allow it to verify information, and that hence it could only read Fraser’s allegations alongside Ramaphosa’s submissions. The latter, it said, was “vague and leaves unsettling gaps”.

Harris said the panel was mistaken.

The presence of prima facie evidence was the threshold for any charge against the president formulated in motion, but more was required of the panel. 

“The independent panel does not simply repeat the same test.”

This misunderstanding meant that its inquiry stopped well short of whether he had acted in bad faith, and without such an assessment it could not arrive at sufficient evidence to warrant an impeachment process.

“There is no evidence that he had acted in bad faith in any way. The misconduct of which he stands accused in the EFF’s application does not come close to constituting serious misconduct of the kind required by section 89(1).”

If the EFF were to prevail and the report were sent back to the National Assembly for reconsideration, Ramaphosa would find himself on a stickier wicket than 18 months ago. Last week’s national elections trimmed the party’s vote share down to 40%, which translates into 70 fewer seats in the National Assembly.