A democratically elected President should only be removed by the vote of the electorate. Absent a vote, the Constitution sought to ensure that a President could only be impeached on compelling grounds. As section 89 of the Constitution states, a President can only be removed on grounds of a serious violation of the Constitution, serious misconduct, or inability to perform the function of the office.
As a consequence of the Constitutional Court judgment in EFF v Speaker of the National Assembly, rules had to be introduced by the National Assembly that would regulate the removal of a President. The rules that were developed provided for the constitution of a panel to conduct a preliminary inquiry to determine whether sufficient evidence exists to justify the removal of a President pursuant to section 89.
The panel chaired by retired Chief Justice Sandile Ngcobo was required to make that assessment on the basis of the evidence provided to it in terms of documents provided by the complainants and the President’s response.
Significantly, in para 80, the panel notes: “We are concerned that we have not been given all the information that is presently available on the Phala Phala issue.” In para 83, the panel notes: “The President has rightly criticised the evidence contained in Mr [Arthur] Fraser’s statement as full of hearsay, in particular, information from undisclosed sources. But some aspects of the evidence proferred by the President, in particular pertaining to the source of foreign currency, is also hearsay.”
These passages raise at least two important questions. The panel was aware, and rightly so, of the limitations of hearsay evidence. In this case, such evidence had to be treated with great caution. Most certainly, in the criminal context, the law is clear: a court should be very careful before relying on hearsay evidence (more so with documentary evidence) that plays a significant part in convicting an accused.
Admittedly, the panel was not dealing with a criminal trial, but the implications of its finding are huge.
The hearsay was in the form of documentary evidence and was provided by a witness, Fraser, whose motivations in reporting the Phala Phala case were surely far more politically orientated than based on his long-standing commitment to open and accountable government.
When the panel sought to bolster this legally questionable evidence, it should have taken into account that the terms of the notice of motion which defined the scope of the panel’s inquiry did not charge the President with money laundering, exchange control violations or tax evasion.
Thus, the panel’s use of the President’s version as its key finding that there was substantial evidence of breaches of section 89 of the Constitution is based on questions that were not answered regarding the source of the money and the nature of the sale of the animals.
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But the President was not required to provide answers to these questions as that was not the case he was asked to meet.
To be sure, the nation is entitled to an explanation of this sale and the proceeds in foreign currency, but that he will doubtless have to provide if the Hawks require it insofar as possible money laundering charges are concerned.
But that was not the mandate of the panel, as the notice of motion that triggered the inquiry made clear. It is surely legally unjustifiable to use the President’s version designed to meet the case posed in the notice of motion as the basis of the finding that there is substantial evidence that the four charges set out in the notice of motion resulted in section 89 of the Constitution having been breached. This is particularly so when the panel’s core reasoning is based on failing to believe the President’s account of the source of the funds and the nature of the transaction, questions that fall outside the scope of the notice of motion.
That this is a significant flaw does not even require a canvass of the reasoning employed to conclude that there is substantial evidence of breaches of section 89.
The distinction between substantial evidence and a prima facie case of breaches of section 89 is more obfuscation than a critical issue. But the absence of adequate reasoning for the panel’s conclusions is deeply troubling. That on these facts the finding that the President engaged in paid work means that members of Parliament or judges who own farms or similar properties, whether directly or indirectly, are engaged in prohibited paid work has only to be stated to trigger the problematic nature of this approach to paid work.
There must surely be significant doubt that requesting a senior police official, Major-General Wally Rhoode, to deal with the theft constitutes a serious form of misconduct. After all, we are dealing with the President, who is mandated to run the country. To find that delegating the reporting task to a police general, albeit the head of presidential security, constitutes serious misconduct to justify an impeachment process is surely two legal bridges too far.
The panel concluded that the President breached section 34 of the Prevention and Combating of Corrupt Activities Act (Precca) by his failure to report the theft. Not only did the panel not address whether the requirements of the section were met but, in addition, it failed to determine whether section 34(4) of Precca applied and whether legally the President was entitled to appoint Rhoode or the farm manager to so report.
To return to the role of an impeachment process, its serious implications for democracy dictate that the process should be triggered only after a carefully researched, reasoned report from the appointed panel. Regrettably, the product produced by the panel fails this standard. On its own, it cannot justify an impeachment inquiry. The focus should now be on the Hawks to complete its work without fear and favour and as expeditiously as possible. Its report should then determine the fate of the President. DM