RAMAPHOSA FIGHTS BACK
Phala Phala panel report – information is not evidence, says President in ConCourt challenge to impeachment findings
President Cyril Ramaphosa has approached the Constitutional Court for direct access to challenge the parliamentary Section 89 panel report which, as it stands, could lead to his impeachment.
The panel, chaired by retired Chief Justice Sandile Ngcobo, found that the President of the republic had a case to answer with regard to a puzzling break-in and theft of foreign currency from his game farm, Phala Phala, in February 2020.
In his application to the ConCourt on 5 December, Ramaphosa noted that “for the first time in the country’s history a sitting president faces impeachment” and it was for this reason that circumstances were exceptional.
“This application does not come easily. I have carefully considered the report and respectfully submit that the process followed by the panel and its conclusions are seriously flawed, thus making the recommendations irrational” concluded the President.
The respondents are Ngcobo, Judge Thokozile Masipa, advocate Mahlape Sello, as well as African Transformation Movement leader Vuyo Zungula and National Assembly Speaker Nosiviwe Mapisa-Nqakula. They have been given 10 days to file their responding affidavits.
Read in Daily Maverick: “President Ramaphosa takes fight to ConCourt – Panel ‘misconceived its mandate and misjudged the information’”
Grapevine evidence not enough
Ramaphosa has accused the panel of basing its conclusions and recommendations on hearsay evidence given by former State Security Agency (SSA) head Arthur Fraser, who brought the break-in to the attention of the SAPS, two years after the event.
Fraser was the national commissioner for correctional services when former president Jacob Zuma was illegally released on medical parole on 5 September 2021 while serving a 15-month sentence for contempt of court.
The Supreme Court of Appeal later found that Fraser could not “simply ignore” the recommendation of the Medical Parole Advisory Board “because he or she holds a different view”.
Read in Daily Maverick: “‘Irrational’ and ‘premature’ – SCA takes aim at Fraser, Correctional Services and says Zuma should return to jail”
The former spy boss has also been implicated in the theft of about R1-billion from the SSA through various projects and schemes, including the Principal Agent Network which was repurposed by Fraser.
Read in Daily Maverick: “Arthur Fraser: How did he get in there – report reveals dodgy backdoor vetting for spy boss”
The Section 89 panel, said the President, should have asked itself whether the evidence “was not only lawfully obtained by Fraser but also was sufficient to support its conclusions”.
Former Chief Justice Sandile Ngcobo. (Photo: Gallo Images / The Times / Daniel Born)
“There was no evidence, let alone sufficient evidence, because all the panel had was Mr Fraser’s say-so,” said Ramaphosa.
Apart from this, he added, the panel had “dabbled in conjecture and had made assumptions”.
No Uncle in the Furniture Business
This specifically with regard to the charge that “I gave permission that the cash should be stuffed inside the sofa”, when the “only evidence” was that he had given “the contrary instruction: that the money be banked”.
Ramaphosa said it was “not every day that a sitting president is under threat of impeachment. If the president is to be removed, the decisions leading up to his removal must be beyond reproach.”
The panel “had strayed beyond its focus” and there was not sufficient evidence that he had committed “serious misconduct”.
It had misconstrued “the enquiry it was supposed to conduct and in fact had determined that it was not required to conduct the inquiry”.
The panel had simply decided, he said, that there was no difference between “evidence” and “information”.
Ramaphosa said the panel had failed to test Fraser’s evidence for admissibility in two crucial respects: whether it had been lawfully obtained and whether it was all hearsay.
“I submit that there exists a real possibility that this information came to the possession of Mr Fraser illegally and it is unclear if any other information was known but deliberately suppressed from the same sources,” said the President.
The panel had misunderstood its mandate in “at least two respects”, in that it had interpreted “whether sufficient evidence exists” to mean “whether there is a prima facie case”.
The panel had stated that it had functioned as “a filter” and had implemented this standard when it concluded there was a prima facie case to answer.
What about bad faith?
Ramaphosa accused the panel of overlooking the fact that “serious misconduct” and a “serious violation of constitution or law”, as defined by the rules of the NA, were confined to “deliberate misconduct”.
“The panel did not inquire into bad faith at all,” he said.
If anything, the panel’s use of the prima facie framework “ended up placing a reverse onus of proof on me”.
Its task had been to determine the sufficiency of the evidence before it and not to consider “whether there are questions I should answer”.
It was irrational for the panel to focus on an absence of explanations, added Ramaphosa, since “an absence of evidence is not evidence of absence”.
In fact the panel had determined, said the President, that “anything I did not answer is prima facie true”.
Dead at dawn
Ramaphosa said that because of the consequences that flowed from the recommendations of the panel, “the country cannot afford instability in the office of the President”.
“Instability risks destabilising the country, least of all because an impeachment process impairs the continued functioning of government.”
Therefore there was “an urgency in resolving the legality of the recommendations and findings of the panel” and exceptional circumstances existed.
A president may only be removed, he said, for “intentional or malicious conduct in bad faith” and the prima facie case threshold employed by the panel “does not get out of the starting block”.
“Only deliberate misconduct can found the removal of the President.”
The panel had to prove not only that Ramaphosa had committed misconduct, but that he had done so deliberately in bad faith.
The President said that once the panel had set itself on the wrong path, it could not conduct “a rational enquiry nor could it reach a rational conclusion”.
The panel had not only failed to determine whether there was evidence to support the charges, but also interrogate whether there was lawfully obtained, admissible evidence and if so, what was its value.
Fraser’s Namibian blockbuster movie plot
There had been no explanation as to how a confidential Namibian report had found its way into Fraser’s hands or how he had obtained this.
“The panel had a duty to ensure that any evidence before it is lawfully obtained, or exclude it,” said Ramaphosa.
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The panel must have known that the Namibian report had not been obtained from the Namibian police.
“The panel placed heavy reliance on the report without testing its reliability, source or whether it formed part of other documents which were carefully excluded when the report was made available to Mr Fraser.”
Also, Fraser’s allegation that Ramaphosa’s special adviser, Bejani Chauke, had smuggled the cash into South Africa had not been supported by any documents, including travel documents, or other facts which could have been presented.
Former State Security Agency director-general Arthur Fraser. (Photo: Gallo Images / Netwerk24 / Jaco Marais)
“Mr Fraser alleges something from a movie; a fictitious drug-smuggling claim, a clandestine informal investigation team meeting in no-man’s land and a mysterious list of phone numbers extracted from unidentified devices.”
Also not explained by the panel was the origin of a Crime Intelligence report and how this came into Fraser’s possession, said the President.
Meanwhile, the Directorate for Priority Crime Investigation has confirmed that 68 statements have been taken with regard to the Phala Phala break-in. However, Brigadier Thandi Mbambo told Daily Maverick: “We can’t disclose any information pertaining to what the investigation has uncovered.”
Read in Daily Maverick: “Hawks secure nearly 70 statements on Ramaphosa farm theft”
The report was due to be discussed in a heated sitting on Tuesday in Parliament, but this has been postponed. DM
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I am not defending the president, but Fraser is a crook, liar and totally unreliable who continues playing dirty political games.
Well said ! Why has he not been charged with concealing the apparent ‘information’ he gad ‘knowledge of ‘ for more than two years …. before going to the police ? IF a crime was committed as he alleges, he is equally guilty of aiding and abetting it ! Has a judge not ruled that he illegally ‘paroled’ JZ … and why is he not being held accountable/charged for that ?
Absolutely! It is unbelievable that people like Fraser and Mabuza are not charged and swiftly prosecuted. CR apparently told his head of security and so delegated the responsibility of reporting it and following up. CR may be guilty of tax fraud, but compared to the thieving and the real damage others cause, it’s small potatoes.
It appears from New24 that Mr Hazim lives in Dubai; he bought the animals via broker in 2019 when in Limpopo celebrating the birthday of his wife who is South African; that Covid restrictions stopped the transport of the buffaloes; he brought the cash in to SA via Oliver Tambo Airport; subsequently, he was expecting to be recompensed for not receiving the consignment.
Summary: Much Ado about Nothing.
I think it’s time to amend the FICA Act to include political parties to be ‘accountable institutions’. What this will do is to require all politicians and office bearers of political parties to report all suspicious transactions to the FIC. It will also severely limit any transaction involving cash.
One of the basic requirements of FICA is to formally demand from the recipient of money to provide documentary evidence of its source.
The idea that a Sudanese businessman can waltz into SA with a suitcase full of cash and then offload it somewhere for goods or services is really problematic. Was this money the proceeds of drugs, arms, rhino trade?
Richard,
Please explain what the origin of the money Hazim brought into the country has to do with the purchase of the buffaloes especially since the actual transaction was not apparently conducted by the President in person. I think you reveal your bias in your remarks.
You are saying the tavern owner where 21 teenagers dies is not culpable because he was not at the tavern. However, the sale is said to have taken place on Christmas day. Of course, the owner of Pick n Pay is not at the till. Which basically defeats as nonsense what you are saying. Cyril was present but his employees were conducting the transaction and funny it was recorded on a cigarette box. The money was not banked for a month before it was stolen. He has not produced the permit required to trade in wild animals. Even if you buy a goat you must produce a receipt where you purchased it on request from the police. Very simple matters that a businessman who has been a director of MTN and Lonmin ought to know. He needs to have proof of the declaration of the foreign currency by the Sudanese criminal found by Sky News. Where were they holidaying in Limpopo if his wife comes from KZN. In which hotel or lodge they were staying. In the absence of his affidavit what was the before the Panel holds until he gets into the S89 Inquiry where he can exculpate himself with proper evidence and documents not insults against the panel that are baseless.
This insult on the former Chief Justice by a bumbling President who by his own account and mouth said that he is a businessman at the closing of Provincial Conference giggling just like Zuma. It is his by his own account that he reported the matter to VIP Protection whilst knowing as a Commander in Chief of the police that you report crime to an SAPS Client Service not body guards. He has not even denied that the money was in sofas and was not declared with SARB. It is imperative to defend the former Chief Justice Ngcobo who did sterling work despite the constraints of guidelines of the process. It is hoped that opposition parties will come to the defence of the judiciary as Cyril and the ANC has a propensity to attack the judiciary. He joined the SACP fascists and ANC thugs in attacking the Constitutional Court on the Walus judgement and simply a populist thug himself. The time to properly polish him must come. The illegal and unconstitutional NEC meeting to interfere with public representatives in the discharge of their duties regarding Phala Phals has also been noted because all those who participated in that meeting were committing a crime.
This all happened Dec 2019 – that falls into the tax year FEB 2020. That tax return was due in Jan 2021. It’s now Dec 2022, so the records can’t be amended. All CR needs to do is disclose the sale invoice and vat declaration that was lodged for the period that includes Dec 19 – show SA the vat declaration return and invoice. This should move us towards the END of the discussion – either the sale was declared or it was NOT.
The question that still remains is whether CR personally gained from the sale; if not, who did? In whose tax declaration is the sale of the buffaloes reflected?
Hi,
As far as I know, since the goods weren’t collected I believe the sale has not been concluded, no invoice would be generated until collection/delivery of the goods.
A constable used to know “hearsay ” is not evidence,nowadays High Court judges don’t seem to know that.
You need to familiarise yourself with the rules of evidence instead of legal plumbers. Hearsay evidence is admissable on certain conditions in our courts and legal system. The legal plumbing that you have been listening to is total miseducation and makes you more illiterate. You need to read the Evidence Act Section 3(4). Yes as general rule it is not there is a criteria set out in the Act that allows it to be admissable and these include the nature of the proceedings, the nature of the evidence, the purpose for which the evidence was tendered, the probable value of the evidence and reasons the source could not provide the evidence himself or herself . Having educated you on the Evidence Act of 1988 you need to stop peddling rubbish that it is not admissablle. The Constitutional Court will educate the legal plumbers of the President on this section properly so. Ngcobo is not a plumber.