PHALA PHALA REPORT
President Ramaphosa takes fight to ConCourt – Panel ‘misconceived its mandate and misjudged the information’
President Cyril Ramaphosa has filed papers with the Constitutional Court urging that it declare the scathing Section 89 Phala Phala report as unlawful and to set it aside.
President Cyril Ramaphosa is not only petitioning the Constitutional Court to dismiss the Independent Panel’s findings against him, but is taking a further step by urging that any action taken by the National Assembly pursuant to the report be equally declared unlawful and invalid.
The papers were filed amid a Special ANC National Executive Committee (NEC) meeting which was called to discuss the report. Ramaphosa recused himself from the meeting after delivering a short political address. This was to allow members to discuss the matter without fear or prejudice.
[WATCH] President Cyril Ramaphosa leaves the NEC meeting. It is probably because he has recused himself from the meeting because the NEC is about to discuss the #PhalaPhala report. pic.twitter.com/j6xq3yspPk
— Queenin Masuabi (@Queenin_M) December 5, 2022
In the affidavit, the President particularly refers to paragraph 264 of the Independent Panel’s report which states that there is prima facie evidence that the President may have committed:
- A serious violation of section 96(2)(a) of the Constitution.
- A serious violation of section 34(1) of the Preventing and Combating of Corrupt Activities Act.
- Serious misconduct in that he violated section 96(2)(b) of the Constitution by acting in a way that is inconsistent with his office and/or by exposing himself to a situation involving a conflict between his official responsibilities and his private business.
“The purpose of this application is to review and set aside the report and particularly its recommendation in paragraph 264. The panel rendered its report and made its recommendation in the exercise of public power. They are thus reviewable under the constitutional principle of legality.
“I submit that the panel misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges advanced against me. It moreover strayed beyond the four charges and considered matters not properly before it,” the court documents read.
Ramaphosa supporters vow to continue to support him,as the ANC NEC deliberates on the section 89 panel report on Phala Phala. #sabcnews pic.twitter.com/tkb5hE3eMp
— Natasha Nokuthula Phiri (@NatashaN_Phiri) December 5, 2022
In the second part of his affidavit, the President applied for leave for the courts to allow him to bring this matter directly to the Constitutional Court in the interests of justice in terms of section 167(6)(a) of the Constitution and rule 18 of the rules of this court.
Ramaphosa argued that there should be finality and certainty about the legality of the panel’s processes because of the consequences that followed its recommendations.
“I am advised that only this court can decide whether or not Parliament has failed to fulfil a constitutional obligation, in terms of section 167(4)(e) of the Constitution. Parliament is under an obligation to act lawfully when fulfilling its constitutional obligations.
“Section 167(6) (a) of the Constitution, and rule 18 of this court’s rules, allow a litigant to approach this court directly, but only when it is in the interests of justice; there are exceptional circumstances; the matter in question must be of public importance and there would be prejudice to the public interest, the ends of justice or good governance,” the documents read.
Respondents in the matter, including the panel, which consists of retired Chief Justice Sandile Ngcobo, Judge Thokozile Masipa, advocate Mahlape Sello, as well as African Transformation Movement leader Vuyo Zungula and National Assembly Speaker Nosiviwe Mapisa-Nqakula, have been given 10 days to file their answering affidavits.
Read more in Daily Maverick: “The Fight Is On: Ramaphosa intends to challenge the Ngcobo Panel Report”
Ramaphosa has been under fire since the outcomes of the Section 89 Independent Panel were shared publically. Calls for his resignation came after the panel led by Ncgobo found that there was prima facie evidence that he may have violated the Constitution and abused his powers.
The panel said he had a case to answer. This could pave the way for his possible impeachment, a charge which has been led by some opposition parties in Parliament.
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The report pointed out that Ramaphosa could be guilty of breaching the laws under the Prevention and Combating of Corrupt Activities Act 12 of 2004, which places an obligation on persons in positions of authority who know or ought reasonably to have known or suspected that any other person has committed an offence (including theft involving an amount of R100,000 or more), to report such knowledge or suspicion.
The panel states that Ramaphosa was supposed to report the Phala Phala burglary and that there is a suggestion that he deliberately intended not to investigate the commission of the crimes committed at the farm.
Daily Maverick understands that Ramaphosa was initially set on resigning following the scathing outcomes of the report, but made a U-turn after discussions with his legal team and close allies.
Phala Phala report – no good options for President Ramaphosa or our country
The President’s circle has been against him resigning despite the seriousness of the allegations levelled against him, and pleaded that he fight instead. DM
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The head of the ATM’s policy and strategy is also the spokesperson of the Jacob Zuma foundation – there is more than incidental alignment between the ATM and the ANC’s RET faction yet their leader is part of this panel. How on earth?
Exactly, odd love to find out how the panel members were selected?
The application for review in terms of Higher Courts Act is not an appeal which subjects the issue to sub judice rules. The only way for Mr Ramaphosa is to interdict parliament. However, he has not brought an urgent application which may be a legal and political tactic by Harris. Former members of the panel cited in the report may file papers to abide because they are functus officio. However, where there are questions of integrity of the panel, they may individually and as a collective defend their honour that is impugned by Mr Ramaphosa. One needs to come to deal with the conduct of the Speaker who has been cited as a respondent by Mr Ramaphosa. Her conduct in attending the meeting of ANC NEC Executive to discuss the ANC posture on the matter as a person who constituted the panel and received its report was both improper and affects her impartiality on the matter and her response to the President filings will have to be scrutinised. She ought to have done the hounorable thing and recused herself from the proceedings of ANC structures sezeid with the matter because she might as well be part of ANC caucus meetings.
The President’s actions to attack the rules of the Panel he has been aware from the outset and never raised them with the Panel is dishonest. His challenge to the Panel refutes his assertion he makes all the time that he would cooperate with the Panel, Hawks, Reserve Bank and SARS point to a pa liar because to date there is no evidence of cooperation