African Transformation Movement (ATM) leader Vuyo Zungula has argued that President Cyril Ramaphosa’s case in the Constitutional Court to have the Section 89 Phala Phala report declared unlawful and set aside should be dismissed. His requests are without merit and Ramaphosa should first have approached lower courts as the matter had not been subject to judicial scrutiny by other courts, said Zungula.  

In court papers filed on Monday, Zungula argues that the President’s application does not engage the exclusive jurisdiction of the Constitutional Court. He goes on to say the President contends that the application concerns his conduct and whether he failed to fulfil a constitutional obligation.

According to the papers, Ramaphosa “also contends that the application concerns whether Parliament has failed to fulfil a constitutional obligation. This, he argues, triggers the application of section 167(4)(e) of the Constitution, and this Court’s exclusive jurisdiction power to hear the application.

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“But this application is not about whether the President or Parliament failed to fulfil a constitutional obligation. Instead, it is about whether the report of the Independent Panel is capable of being reviewed and set aside, and if it is, whether it falls to be reviewed and set aside.”

Zungula said the work of the Independent Panel was not the work of Parliament. He argued that the report by the Independent Panel was not reviewable because such reports were merely recommendations and not final decisions capable of creating direct consequences.  

“The relief sought by the President in this application impedes Parliament [from] exercising its constitutional functions. The President asks this Court to set aside a report before Parliament has had an opportunity to consider, deliberate and vote on whether the report should be accepted or rejected. This self-evidently undermines the work of Parliament, and in turn, the separation of powers.”  

ANC Treasurer-General Paul Mashatile has already told the media that the party’s National Executive Committee (NEC) had taken a unanimous decision to back Ramaphosa in his bid to avoid impeachment. This means the party will vote against the adoption of the report in Parliament.

Report ‘quoted out of context’  

Zungula also said Ramaphosa had sought to impugn the Independent Panel’s report by selectively quoting portions of the report out of context, and disregarding important considerations and analysis set out in the report.

He said claiming that the panel “made conclusions, based on hearsay statements, without regard to the law”, was not a fair representation of how the Independent Panel had considered the information before it.

“The Panel expressly recognised that the hearsay evidence of both the President and Mr [Arthur] Fraser ought to be treated with caution. The Panel analysed the information before it, having regard to the inherent probabilities and the inconsistencies in the evidence of the President. It did not blindly adopt the hearsay evidence of either Mr Fraser or the President.”

Panel ‘did not ignore evidence’

In his application, Ramaphosa also contends that the panel ignored essential evidence and somehow discounted Major-General Wally Rhoode’s own sworn statements against Fraser’s allegations. 

Zungula said the panel had considered Rhoode’s version.  

“This is apparent from paragraphs 152-170 of the report. General Rhoode himself admitted that (a) he travelled to Namibia with Mr Chauke on 25 June 2020; (b) they drove to ‘No Man’s Land’ and waited for the Namibian Police to meet them there; (c) they were picked up in a helicopter and arrived in Windhoek on the evening of 25 June 2020; and (d) they met with the President of Namibia that evening.”

He said the panel had considered these facts and regarded Rhoode’s explanation as to why he was in Namibia as improbable.

“The President contends that Mr Fraser’s allegations are ‘something from a movie’, yet it was General Rhoode’s own version that he was in Namibia; that, for some reason, he waited for the Namibian authorities in ‘No Man’s Land’ and that he travelled with Mr [Bejani] Chauke to meet the President of Namibia on the evening of 25 June 2020.

“The Panel did not regard General Rhoode’s explanation regarding why he was in Namibia as satisfactory.”

Closing his response, Zungula said he denied that the report was reviewable or that there was any basis to review and set aside the report.

“As I have demonstrated above, the President has not made out a case to demonstrate that the Panel prepared the report in an irrational manner.  This application is not about the conduct of Parliament or the President. It, therefore, does not fall within section 167(4)(e) of the Constitution.” DM