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PHALA PHALA OP-ED

Ramaphosa should jump at the chance to clear his name before an impeachment inquiry — if he has nothing to hide

Ramaphosa should jump at the chance to clear his name before an impeachment inquiry — if he has nothing to hide
Illustrative image | Sources: President Cyril Ramaphosa. (Photo: Waldo Swiegers / Bloomberg via Getty Images) | pngtree | flyclipart

The report of the independent section 89 panel on whether sufficient evidence exists to warrant a full inquiry by an ad hoc committee of the National Assembly into whether President Cyril Ramaphosa committed serious violations of the Constitution or the law, or is guilty of serious misconduct, contains devastating ‘findings’ against the President. While there are significant leaps of logic in the report (arguably making it vulnerable to judicial review), it does not necessarily mean that the President has no case to answer.

Arguably the most damaging aspect of the Phala Phala panel report is its conclusion that the President has a case to answer on the origins of the foreign currency that was stolen, as well as the underlying transaction for it.

The President claimed that the stolen money was the proceeds of the sale of 20 buffaloes to Mr Mustafa Mohamed Ibrahim Hazim, a citizen of Sudan, and furnished the panel with “an acknowledgement of receipt” as proof, but the panel concluded that there was substantial doubt that this was true.

This conclusion is not surprising. 

As the panel pointed out, it is odd that a foreign national would rock up at Phala Phala without making prior arrangements to view the animals with more than $500,000 in foreign currency on hand, would be given an “acknowledgement of receipt” that contained no particulars of the buyer “such as his physical address, telephone numbers, business address, and other personal details such as his passport number”, and would make no arrangements to collect the buffaloes he had bought more than two-and-a-half years ago. It is also odd that the money was not kept in a safe, but was rather stuffed in a sofa where it was kept for well over a month.

ramaphosa impeachment panel report

The Section 89 Panel Report . (Photo Brenton Geach)

The second truly damaging conclusion reached by the panel is that president Ramaphosa exposed himself to a situation involving a conflict between his official responsibilities and his private interests, most notably by seeking assistance from the president of Namibia to apprehend the suspects of the theft and to keep the matter quiet. 

Read more in Daily Maverick: “Damage: With Ramaphosa in fight for his political life, the ANC has only bad, worse and terrible options

The panel also quoted from a confidential report of the Namibia Commissioner of the Criminal Investigation Department (dated 21 June 2020) which stated that discussions about the theft “are allegedly going on between the country’s two Presidents”, and noted that “due to the sensitivity of the matter and the envisaged fallout it will create in South Africa [the South African authorities] requested that the matter is handled with discretion”.

(It must be noted that the panel seemed to have accepted without question that the Namibian Report was genuine and that the claims made in it were true, despite the fact that the report was furnished by the former head of the South African State Security Agency, Mr Arthur Fraser, whose credibility is not beyond reproach.)

Unpersuasive

On the other hand, I find the panel’s conclusion that there is prima facie evidence that the President violated section 34(1) read with section 34(2) of the Prevention and Combating of Corrupt Activities Act by not reporting the theft to a police official in the Directorate for Priority Crime Investigation (known as the Hawks), unpersuasive. Section 34(1) required the President, as a member of the Phala Phala closed corporation, to report the theft, or “cause such knowledge or suspicion to be reported” to the police official in the Directorate for Priority Crime Investigation. 

The panel held that it was “common cause that the President reported the housebreaking and theft to General Rhoode” and that he “expected the General to process the report in accordance with police procedures”. The panel also noted that given “the high rank in the police hierarchy that these senior police officers hold, we can assume they knew that theft which involves such a huge amount had to be reported to the police official in the Directorate for Priority Crime Investigation”. 

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On the panel’s own version of events, the failure lies with General Rhoode and not with the President, who expected the general to report the matter in “accordance with police procedures”. 

Apart from the above, the major weakness of the panel report is that it does not deal adequately with the question of whether any breaches of the Constitution or the law or any misconduct were of a serious nature. As the panel noted, “not every violation of the Constitution or the law, or misconduct constitutes a ground for impeachment and removal from office”. Only serious violations justify impeachment.

The rules of the National Assembly define serious misconduct as “unlawful, dishonest or improper behaviour performed by the President in bad faith”, and a serious violation of the Constitution or the law, as “behaviour by the President amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”. 

Read more in Daily Maverick: “As President Ramaphosa faces impeachment, tough political and constitutional decisions await

This means that the question of whether the President had acted in bad faith and with the necessary intention, is crucial in determining whether grounds for impeachment exist. Where the President acts in breach of the Constitution, where the relevant provision of the Constitution is reasonably open to different interpretations.

The panel argued that “bad faith can be inferred from the nature and the circumstances surrounding the violation of the Constitution or the law and misconduct”. But it seemed to have accepted that what matters is whether the allegations are serious, and that it was not necessary to consider whether the President had the intention to violate the Constitution or the law or commit misconduct.

Had it done so, it may well have concluded that receiving foreign currency from an unexplained source, and using the position as Head of State to keep the theft secret and to persuade the government of Namibia to do so as well, amounts to serious violations or misconduct. (But it would have strengthened the panel’s report if it had identified the applicable criminal provisions that may have been breached.)

‘Other paid work’

But its failure to do so casts doubt on at least one of its other conclusions, namely that the President may have committed a serious violation of the Constitution by running the Phala Phala game farm, because by doing so he had undertaken “other paid work” in breach of section 96(2)(a) of the Constitution. The panel noted that the term “other paid work” is not defined in the Executive Ethics Code. Nor have our courts provided a definitive definition of this term. The panel also held — correctly in my view — that the term should be interpreted expansively to cover “all work for financial gain or reward whether as employees or self-employed”.

President Ramaphosa argued that he had declared his interest in Phala Phala and that he was not getting paid for his work, and that section 96(2)(a) therefore did not apply. While he may well be wrong about this, the fact that he declared this interest and that there is no definitive definition of the term, means that it would be difficult to argue that there is evidence that the President’s actions in this regard amount to an intentional or malicious violation of the Constitution or the law performed in bad faith.

Court review

If the President’s lawyers advise him that the report is not beyond reproach, the President may be tempted to approach the courts to have the panel report reviewed as set aside on the grounds of legality. As all exercises of public power are, in principle, reviewable by our courts, and as the report was prepared in accordance with the rules of the National Assembly as authorised by the Constitution, the report may well be reviewable. Given the weaknesses in the report, it is not inconceivable that such a review may be wholly or partially successful.

Even if such a review is eventually unsuccessful, it may delay the President’s day of reckoning for two or three years, allowing his less principled supporters to invoke a non-existent version of the sub judice rule to argue that the many grave questions about the President’s conduct should only be discussed once the courts have finalised the matter. (Jacob Zuma and Busisiwe Mkhwebane have shown just how effective such a strategy can be.)

But none of this may matter much. Even if the panel’s report is set aside, the questions about where the foreign currency came from, why it was stuffed in a couch and its theft kept secret, and what President Ramaphosa may or may not have asked his Namibian counterpart to do, will not go away. The only way to make the questions go away is to provide a detailed and honest explanation, supported by the evidence of others involved in the matter as well as any relevant documents, something (as the panel noted) the President has not yet done.

An impeachment inquiry by an ad hoc committee of the National Assembly would be the perfect place to do so. Of course, such an inquiry would be disruptive and would provide a platform for opposition parties to shout their indignation to the heavens. But if the President has nothing to hide, he would be wise to jump at the opportunity to clear his name before such an ad hoc committee.

The obvious alternative is to resign as President of the ANC and the country. DM

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Comments - Please in order to comment.

  • Margaret Jensen says:

    Well said Pierre de Vos. Thank you

  • Errol Price says:

    Some interesting points raised in this piece.
    By the way, Prof de Vos, the panel cannot have ” …a version of events.. ”
    Only a party or a witness to proceedings can have a version.
    A court or panel makes findings or draws conclusions as to versions offered before it

  • Roelf Pretorius says:

    Pierre, I think you are more sober than most of these other commentators and politicians. And I agree that the President should challenge this report, both in court and in an impeachment trial. But I also have to take issue with you on two matters: Firstly, why do all of you take this ridiculous story of Ramaphosa having stuffed so much money into a sofa as true in the first place? After all it comes from Arthur Fraser, which is known more for misinformation than anything else, and he had all the motivation to cause all this trouble. Why does everybody fall so much over their own feet to buy into this obvious untrue attempt at misinformation? I re-iterate, I can’t see that a person who had worked with billions for decades would have money of that nature stored in any other place than a safe. How long does it take to have a safe installed and how much would it cost? A week and R10000? After all the whole visit of the Sudanese would have been known, so there was more than enough time to do this, and the amount is miniscule compared to the money that had to be stored. Secondly, even if such a ridiculous thing would be true, what makes all of you think that it was Ramaphosa who did it? I can’t for one moment see that he would have approved such a thing, even if it was illegal money.

    • Dave Martin says:

      Agreed. This “money in the sofa” story is ridiculous. If it did in fact happen, then it can only be explained by there being a dodgy employee with the intention to steal it. The fact the money was indeed subsequently stolen – against Ramaphosa’s wishes – proves the point that the president had nothing to do with hiding the money there.

      Similarly, this claim that he didn’t report the matter to the police seems unfair given that he DID report it to Major General Roode. The fact that Roode didn’t subsequently report it to the SAPS is not CR’s fault. If money was stolen from the White House, would Biden be expected to go and report it at the police station?

    • Richard Bryant says:

      The truth is, there has been in unwritten rule that the ANC President since the time of Mandela, has had access to a store of hard cash for who knows what purpose. Thuli Modensela was refused access when she inspected Nkandla because, at the time it was said, it was stuffed full of cash courtesy of Putin. Evidence led at the Zondo commission was that Mhlobo delivered suitcases of cash to Zuma on a monthly basis from the SSA, which Fraser would have been involved in.

      Fraser knows about this cash source because he was central to it. It was not anything to do with sale of livestock. Why it was put under cushions is anyone’s guess but I’m sure Fraser was part of that arrangement as well.

      Ramaphosa could come out swinging and tell the truth about this cash but that would be the end of him and the ANC. Because the real source of the cash will be from very nefarious places and could well result in the ANC being placed on an international list of institutions related to terrorism and other illegal activities.

  • Cunningham Ngcukana says:

    de Vos is living in a time warp as the train has long left the station. Cyril had all the time to clear his name as soon as the matter became public. He failed with distinctions to do so because he holds the people of South Africa with disdain and lack of respect. He has no grasp that being a President you are a Constitutional being as the Nkandla Judgement said. de Vos and other legal plumbers fail to grasp the tittle of the President as a Commander – in Chief and what this means practically. To educate de Vos, it means that as a Commander – in – Chief he ought to know that crimes are not reported to VIP Protection Sercvices but to the SAPS Client Service. He has actually dug a hole for himself for fooling people that he reported to VIP Protection. The fact that he abused his powers and conducted an investigation on his private matter using public resources to de Vos it is called abuse of power. The horse having bolted, Calland as another notorious legal plumber, raises the issue of reviewing the decision and it is not possible. The document is the property of parliament and he may have to review the decision of parliament and he would look stupid. The route that is left is for ANC cheque collectors to use their vote to defend him as they did to Zuma for the matter not reach an inquiry stage,if does, he will spend months in an inquiry like the Public Protector. He made his bed and he has to sleep on it. Some ANC members like NDZ, Bhomgo etc will vote with the opposition.

    • Errol Price says:

      Congratulations, Mr Ngcukana,
      You express yourself with some force , but in my humble opinion have got to the heart of the matter more succinctly and cogently than most of the writers of the reams already spewed out on this matter.

    • Jeremy Doveton-Helps says:

      Succinctly put – and in the interests of balance (which has been sorely lacking in comment up to this point), here is a slightly different view… one which seeks to deal ONLY with the facts as currently extant (albethey few), rather than making sweeping assumptions about what the various parties thought, assumed and/or actually did:
      – A theft occurred. Fact.
      – How, why, and by whom exactly it occurred remains unclear, other than ‘hearsay’ from that bastion of moral rectitude, Arthur Fraser.
      – What/how much was stolen? Again, only wild ‘hearsay’ claims from one Arthur Fraser.
      – The above answers should surely be elicited from the interrogation of the perpetrators – in the Namibian Police Report… where is that? Unseen and unverified – other than a version, conveniently ‘leaked’… by Mr Arthur Fraser.
      – Any ‘hard’ evidence of the crime’s actual commission? Only some fake videos (now proven fact) provided by…. none other than Arthur Fraser.

      So – should our Head of State stoop to defending himself against ‘hearsay’, largely originating from only one, HIGHLY questionable and demonstrably vindictive source, whose only evidence is either FAK, or hearsay, yet to be verified in any shape of form?
      Worse still – should he take the extreme step of resigning over such unproven mud-slinging?
      It would set an extraordinarily dangerous precedent, and allow future leaders to become the cannon fodder of any and every fistful of mud, flung by whichever disenchanted agenda!

      • Kanu Sukha says:

        Quite a relatively sober take on the matter … and as for the bombastic Cunningham … I am waiting for the next university (Trump maybe?) to award him a professorship ! Maybe the Mpofu school of law at JZ university will do those honours ?

  • Elaine Bing says:

    About the only solace I take from the matter is that the president is clearly usually honest. Evasive, but not dishonest. If he were a practiced liar he would have made up a far better story. This one is so clearly improbable that only someone unskilled in lying would have thought it would do.

  • Richard Bryant says:

    There is one very legal simple solution to this situation which will go a long way to prevent SA from being grey listed as well.

    The 1st schedule of the FICA Act needs to be amended by adding Political Parties and politicians on the executive level of any Political Party as an “Accountable Institution “. This will require them to question the source and report to the FIC in case of there being a ‘suspicious transaction’ as defined by the Act. In particular, it is required to report any transaction in cash in excess of R30000.

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