Ramaphosa takes Phala Phala report to court, threatens to interdict impeachment process

President Cyril Ramaphosa has warned the National Assembly against proceeding with the impeachment process into his conduct in the Phala Phala saga, saying he would be “compelled” to seek an interdict from the Western Cape high court should it go ahead.

The President’s words of caution to MPs are contained in his application to the high court on Monday, 25 May, to review and set aside the Section 89 independent panel report and to invalidate any actions taken by the National Assembly pursuant to it.

“It would be intolerable and a travesty if the National Assembly were to proceed with an impeachment process triggered by the panel’s report, at a time when a challenge to the lawfulness and validity of that report is pending. I trust that the National Assembly will not do so,” Ramaphosa said in his affidavit.

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“I also accept, however, that the matter is urgent and that it is in the public interest that it be determined without delay. I shall, to that end, propose to the respondents that we agree on expedited timeframes for the determination of this application. I trust that good sense will prevail.

“In the unlikely event that the National Assembly insists on … proceeding with the impeachment process while this application is pending, I shall be compelled to launch an urgent application to this court for an interdict precluding it from doing so. I trust, however, that such an urgent application would not be necessary,” he continued.

Ramaphosa’s review application comes as the National Assembly Speaker Thoko Didiza announced on Monday the list of 31 MPs who will serve on the impeachment committee that will probe the Phala Phala matter.

MPs have already raised concerns about delays in the process of constituting the committee.

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News24’s Carol Paton has reported that Didiza is unlikely to decide to delay the committee’s work alone and is expected to consult with Parliament through the Chief Whips Forum, the impeachment committee or the National Assembly.

ANC secretary-general Fikile Mbalula said the impeachment committee would have to reflect and decide whether to wait or continue with the process.

“Politically, it can be regarded as a stalling tactic, but you exhaust all avenues. This is not new. He [Ramaphosa] got legal advice (at the time) that the matter was moot (at the time). Now that the matter has been brought back, it opens up the issue of reviewing,” said Mbalula at a press conference on Tuesday after an ANC National Executive Committee meeting over the weekend.

‘I do not make this application lightly’

Ramaphosa announced earlier this month that he would take the report of the panel, chaired by former chief justice Sandile Ngcobo, on judicial review in the high court.

This was after the Constitutional Court cleared the path for a public impeachment hearing into his conduct surrounding the theft of cash at his Phala Phala farm. The court found, in a case brought by the EFF, that Rule 129I of the Rules of the National Assembly was unconstitutional and set it aside. It also set aside the National Assembly vote in December 2022, in which it declined to refer Ngcobo’s report to an impeachment committee.

Ngcobo’s panel was unconvinced by Ramaphosa’s account of the theft of $580,000 from a couch in a room on his Phala Phala farm in February 2020, and did not accept his claims that the money had been the proceeds of a buffalo sale.

Its 82-page report found that the President had a case to answer over serious violations of the Constitution for exposing himself to a conflict of interest, doing outside paid work and contravening the Prevention of Corrupt Activities Act.

It concluded: “Viewed as a whole, the information presented to the panel, prima facie, establishes that:

• There was a deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly.
• The misconduct based on violations of the provisions of section 96(2)(b) and the violation of section 34(1) of Precca were committed to keep the investigation a secret.
• The request to the Namibian Police to ‘handle the matter with discretion’ confirms this intention.
• The President abused his position as Head of State to have the matter investigated and seeking [sic] the assistance of the Namibian President to apprehend a suspect.
• There was more foreign currency concealed in the sofa than the amount reflected in the acknowledgement of receipt. This raises the source of the additional currency.”

Ramaphosa previously approached the Constitutional Court in December 2022 for direct access to challenge the report. However, the court dismissed his request, and the application was later abandoned after the National Assembly vote rendered it moot.

Ramaphosa has now revived the matter in the Western Cape high court. His core argument, that the panel “misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges” against him, is mostly unchanged; as is his contention that the panel made findings against him about matters outside of the four charges he was asked to respond to.

In his 62-page affidavit, he submits that Ngcobo’s panel misunderstood its mandate and failed to consider whether there was sufficient evidence to show a serious violation.

“I do not make this application lightly. 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 and contrary to the principle of legality,” Ramaphosa said.

The respondents in the case are Didiza, Ngcobo, Judge Thokozile Masipa and advocate Mahlape Sello, as well as African Transformation Movement leader Vuyo Zungula.

Mandate misunderstood

In his application, Ramaphosa argues that the panel misunderstood its mandate in “at least four” respects.

First, it interpreted “whether sufficient evidence exists” to mean “whether there is a prima facie case”. Ramaphosa argued that the panel was not expected to make prima facie findings against him, but was instead required to assess whether there was sufficient evidence to show that he was guilty of serious misconduct – something he said it had failed to do.

Second, the panel failed to determine whether sufficient evidence exists to show that Ramaphosa was guilty of serious misconduct. Instead, Ramaphosa argued, it “determined that the information before it disclosed, prima facie, that the President ‘may’ have committed” the alleged misconduct.

Third, it did not consider the distinction which the rules draw between “information” and “evidence”. Ramaphosa said that because the panel determined that there was no difference between evidence and information, it failed to “sift through the ‘information’ provided to it, and determine which part of it constitutes admissible ‘evidence’ ” against him.

Fourth, the panel did not assess the central question of whether Ramaphosa acted in bad faith, so it could not “rationally conclude” that there was sufficient evidence of his alleged misconduct. Ramaphosa argued that “serious misconduct”, as defined in the Rules of the National Assembly, “is confined to deliberate misconduct” by the President acting in bad faith. However, he said the panel did not inquire into his bad faith “at all”.

Hearsay evidence not enough

Ramaphosa further accused Ngcobo’s panel of basing its conclusions on hearsay information given by former State Security Agency (SSA) head Arthur Fraser. (Fraser’s criminal complaint against Ramaphosa in June 2022 is what opened the Phala Phala can of worms).

Fraser was the National Commissioner for Correctional Services when Jacob Zuma was illegally released on medical parole in 2021 while serving a 15-month sentence for contempt of court. He’s also been implicated in the theft of about R1-billion from the SSA.

Ramaphosa argued that the panel failed to test Fraser’s evidence for admissibility in two crucial respects: whether it had been lawfully obtained and whether it was all hearsay.

“The panel did not apply any of these mandatory provisions. It did not appreciate the default rule that hearsay evidence must be excluded, and can only be admitted in certain defined circumstances.

“As a result, the panel made conclusions, based on hearsay statements, without regard to the law. Save for the limited evidence I introduced in my response, there was no evidence before the panel,” he said.

He continued: “There was no evidence, let alone sufficient evidence, because all the panel had was Mr Fraser’s say-so. The rest of the panel’s reasoning is an illogical and irrational attempt to patch together evidence from an absence of evidence.”

According to Ramaphosa, there had been no explanation as to how a confidential Namibian police report had found its way into Fraser’s hands.

“The panel had a duty to ensure that any evidence before it is lawfully obtained, or exclude it,” he said. “It is likely that the Namibian report, if it is at all legitimate, landed in Mr Fraser’s hands unlawfully.” DM