An observation by Professor Pierre de Vos in his article “Ramaphosa should jump at the chance to clear his name before an impeachment inquiry — if he has nothing to hide” (Daily Maverick, 1 December) is that: “The report of the independent Section 89 panel on whether sufficient evidence exists to warrant a full inquiry by an ad hoc committee of the National Assembly into whether President Cyril Ramaphosa committed serious violations of the Constitution or the law, or is guilty of serious misconduct, contains devastating ‘findings’ against the President.”

Armed with the Section 89 panel report, opposition parties in the main are of the view that they have a good case against the President. The concept of bad faith by Ramaphosa will be one of those on the lips of parliamentarians when on Tuesday, 13 December they cast their votes for or against an impeachment inquiry by an ad hoc committee of the National Assembly.

Do they know the tools of their trade? One can only wait to hear what they will be spewing from their benches to get a sense if indeed they have an unadulterated knowledge of the concept of bad faith within the context of the Phala Phala Section 89 report. 

The panel argued: “Bad faith can be inferred from the nature and the circumstances surrounding the violation of the Constitution or the law and misconduct.” 

South Africa has several laws that seek to punish individuals or companies that act with a palpably and patently fraudulent and dishonest purpose or with some perverse or ill motive. This is what is commonly referred to as “evident bad faith”.

Bad faith by inference should not be elevated to a primary principle in politically clothed processes such as impeachment. In law, bad faith per se is not always enough for one to be held criminally liable. There must be a manifest deliberate intent on the part of the accused to do wrong or to cause damage. Therefore, bad faith by inference, as the Section 89 panel seems to suggest, is taking the concept of bad faith to a different level. Evident bad faith entails deliberate intent to do wrong or to cause damage — it must be shown that the accused was spurred by a corrupt motive.

In a judgment penned by former Chief Justice Mogoeng Mogoeng, in the case of Public Protector v South African Reserve Bank 2019, the court ruled that:

“The correct approach to determining the existence of bad faith is, therefore, one that recognises that bad faith exists only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be reasonably inferred and bad faith presumed. This is so because the mischief sought to be rooted out by rendering bad faith so severely punishable, particularly within the public sector space, is to curb abuse of office which invariably has prejudicial consequences for others.”

Much focus has been put on the issue of presuming that Ramaphosa acted in bad faith. Generally, there should be no such thing as a presumption of bad faith in cases involving violations of the anti-corruption legislation. On the contrary, the law presumes the person accused of corruption or corrupt practices is innocent until proven guilty.

Some commentators and those who analysed the Phala Phala report do say, and correctly so to a certain extent, that the counter-argument of the President is weak. But we must not forget that the historically entrenched rule or practice in our jurisprudence is that the conviction of the accused must rest not on the weakness of the defence, but on the strength of the evidence against him or her.

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If the circumstances established do not show beyond reasonable doubt that Ramaphosa was spurred by a corrupt or ill motive, the parliamentary vote is likely to suffer a big blow with the majority going against the motion to impeach him. This is likely to be one of the closest-call votes to date.

Of course, the parliamentary process is not a court process and it will be naïve to think that MPs will not vote according to their political allegiances and some for self-preservation. However, what the MPs must keep in mind when they vote on this matter is that they are dealing with allegations of serious misconduct by the President invoking both statutory and constitutional provisions.

Also, they could be the first in South Africa’s history to impeach the President and set a precedent for decades to come — or should I rather say for young, vibrant and constitutionally savvy parliamentarians.

The rules of the National Assembly define serious misconduct as “unlawful, dishonest or improper behaviour performed by the President in bad faith”, and a serious violation of the law or Constitution, as “behaviour by the President amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”.

If the Phala Phala alleged offence was before the courts for a determination of the guilt or innocence of Ramaphosa, the approach by the court would certainly be that his conviction must rest on no less than hard evidence showing that he is guilty of the crime charged. Short of any constitutional mandate and statutory safeguards, the court will be duty-bound to render a verdict of acquittal.

The indictment is on our parliamentarians to strike a justiciable balance to the known fact that the impeachment or removal from office processes are not just politics as usual, nor are they a standard legal process.

What they are about to embark on is part of the corrective and accountability mechanisms directed by the Constitution. Failure to observe this by playing pure party politics and showboating will render them guilty of the violation of their own office, or the dereliction of constitutional duty.

Tuesday, 13 December 2022 must not go down in history as the day when our institutional processes ceased to function; when they broke down because of politicians; and when the purpose of presidential impeachment was perverted right from the start of its implementation.

Will our parliamentarians engage in bad faith or in good faith with the Constitution of the Republic of South Africa? DM