/ 12 December 2022

Ramaphosa’s legal challenge is flawed, ATM argues in papers

Ramaphosa was in Seshego — the home town of Economic Freedom Fighters
The outcome is a boost for the president’s renewal agenda going into next year’s election. (Delwyn Verasamy/M&G)

The Ngcobo report is not reviewable in principle, the African Transformation Movement (ATM) has argued in papers filed to the constitutional court on Monday in response to President Cyril Ramaphosa’s legal challenge to its recommendation that he face an impeachment inquiry.

“This court has held that investigation reports that are merely recommendatory in nature are not reviewable because they are not final decisions capable of creating direct consequences,” the ATM argued.

The ATM said parliament’s rules make it plain that the findings of the independent panel headed by former chief justice Sandile Ngcobo were not binding on the National Assembly where the report was scheduled to be debated on Tuesday afternoon.

Therefore, it said, the president’s application filed last week Monday, impeded parliament from exercising its constitutional functions, in that it asked the court to set aside the report before parliament had an opportunity to consider whether to accept or reject it.

“This self-evidently undermines the work of parliament and in turn, the separation of powers.”

The chamber may reject the report for the reasons advanced by the president, or it may decide to adopt the report, but it was for its members to decide, the ATM continued. Hence, Ramaphosa’s application saw him attempting to pre-empt or stymie the work of the legislature.

“That he may not do,” the party argued.

“The work of the assembly in holding the president accountable should not be impaired before the process is finalised. To do so would be to undermine the separation of powers and parliament’s constitutional duty to hold the president to account.”

But even if the court disagreed with it on this score, Ramaphosa had not cleared the high bar for setting aside conduct on the basis of irrationality, the ATM said.

The president had quoted sections of the 87-page report out of context and disregarded important consideration therein.

Perhaps crucially, the ATM said, the work of the panel cannot be misconstrued as a function of parliament because, as its name indicates, it is meant to be independent of the National Assembly. Its report is moreover not-binding and therefore its findings cannot give rise to a failure on the part of parliament.

Ramaphosa’s challenge therefore does not trigger 167(4)(e) of the Constitution because he was not asking the court to determine whether a section of the Constitution that imposed an obligation on the legislature had been breached, but merely asking it to set aside a non-binding report.

And that, it said, cannot be a matter that falls within the exclusive jurisdiction of the apex court. Hence the court’s decision as to granting the president direct access should be based on whether it was in the interests of justice to do so.

Ramaphosa failed this test, firstly because there were serious disputes of fact, the ATM contended. The president for example argued that the panel failed to interpret its mandate correctly or to interrogate whether he had acted in bad faith, which is one of the requirements for impeachment in terms of section 89 of the Constitution.

But in doing so, he is quoting from the report in selective fashion, the ATM argued.

“The panel did, in fact, conclude that the conduct of the president was deliberate and that he acted in bad faith.”

It found, for example, that he may have acted in bad faith by taking “a deliberate decision” to keep the investigation into the burglary at his farm secret.

“The investigation was deliberately conducted outside of the normal procedures for investigating a crime.”

Because the above arguments concern factual disputes, it posed a bar to direct access to the constitutional court, which has in the past held that it is not appropriate for it to sit as the court of first and final instance in such cases.

And it may ultimately fall to the apex court to settle the interpretation of the rules of the independent panel in impeachment matters, but it should also not be the court of first instance. This was, the ATM said, because the apex court should have the benefit of the reading of other courts of the rules of the panel.

The ATM also challenged Ramaphosa’s argument that the panel reached an adverse finding on the basis of hearsay evidence. Along with contending that the panel misconstrued its mandate to arrive at a conclusion that he may have committed a serious violation of the law, this was one of the president’s key contentions.

To recap, the panel mulled charges in an impeachment motion brought by the ATM, which relied heavily on allegations by former intelligence boss Arthur Fraser. He asserted that the source of the foreign currency stolen from the president’s Limpopo game farm was a series of donations by foreign states, not a livestock sale as the president claimed.

Ramaphosa dismissed Fraser’s account as fiction, but the panel said his own version too was heavy on hearsay.

The ATM said the panel correctly acknowledged that both versions had to be treated with caution. A proper reading of the report therefore runs counter to his suggestion that the panel blindly accepted Fraser’s account, in violation of the rules on evidence.

“The approach by the panel was to consider the surrounding and independent information together with the common cause facts.”

It is from there, the ATM said, that the panel proceeded to consider the probabilities of their versions of what transpired around the burglary at his Phala Phala farm in 2020. 

It also considered the version of the head of the presidential protection service, Wally Rhoode, contrary to what Ramaphosa suggested in his court papers, but did not find his account satisfactory, including elements of cooperation with Namibian authorities in the unofficial investigation he led.

Ramaphosa filed for legal review five days after the report was released, with the vociferous encouragement of his supporters in the ANC. 

Ruling party MPs have been instructed to vote against the report in the debate where a simple majority is required for resolution to carry.