Phala Phala: Watch this space as Ramaphosa considers next move

On 9 February 2020, at President Cyril Ramaphosa’s private residence at the Phala Phala Wildlife game farm, foreign currency was stolen. Arthur Fraser, the controversial one-time director-general of the State Security Agency, lodged a criminal complaint that millions of dollars were involved, that the proceeds constituted money laundering and that the President was involved in a cover-up to defeat the ends of justice.

The President offered the following explanation: He insisted that the money was the proceeds of a cash sale of 20 buffalo made on Christmas Day in 2019 to a Sudanese businessman, Mr Mustafa Hazi.

According to him, the money ($580,000) was kept in a safe in an office at Phala Phala and, on his instructions, would be banked on the return of Phala Phala’s general manager, Mr Hendrik von Wielligh, who was on leave, and the sale transaction was processed to finality after the festive season.

No tax invoice had been generated and the buffalo had not been collected. However, the Phala Phala lodge manager, Mr Sylvester Ndlovu, was uncomfortable about leaving the money in the safe, to which several staff members had access. He decided to “store [it] below cushions of a sofa” in a rarely used spare bedroom in the President’s residence until his return, as he thought no one would break into the President’s house.

On 18 July 2022, Mr Vuyolwethu Zungula, an African Transformation Movement Member of Parliament, submitted a substantive notice of motion to the Speaker in terms of section 89(1) of the Constitution and rules 129A to 129Q of the Rules of the National Assembly (NA) to initiate an inquiry into the removal of the President from his office on the allegations that he had committed a serious violation of the Constitution that fell within the scope of Section 89(1), which provides: “The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its [M]embers, may remove the President from office only on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office.”

It is important to note that the Zungula motion did not allege corruption, money laundering or tax evasion on the part of the President. Rather, the complaint concerned the President having a business as a farmer, failing to report a crime and using former Presidential Protection Unit head Major General Rhoode to deal with the issue.

By this time, thanks to the legacy of the State Capture era of Jacob Zuma, a procedure was established to process a complaint lodged in terms of section 89 of the Constitution.

That required the constitution of an independent panel, in this case chaired by retired Chief Justice Sandile Ngcobo, which found that there were grounds for finding that the President’s conduct fell within the scope of section 89 of the Constitution. However, instead of referring the report to an impeachment committee of members of the NA as provided for by the Rules of the NA, the majority of the NA voted down any further proceedings and effectively declared, “case closed”.

Fourteen months later, the EFF brought a review of this decision by the NA, essentially on the basis of the NA acting irrationally in blocking the further investigation of a prima facie case against the President despite the objective findings of the independent panel.

Some 18 months later, the Constitutional Court disgorged itself of three judgments, with the majority upholding the EFF challenge.

Chief Justice Mandisa Maya commendably took the blame for the very lengthy delay in the introduction to her judgment, which combined with that of Justice Steven Majiedt, set out the reasons for an order, the key portion of which declared that the NA vote taken on 13 December 2022, declining to refer the report of the independent panel to an impeachment committee as envisaged in the NA rules, was inconsistent with the Constitution, invalid and set aside. It further provides that the report is referred to the impeachment committee established in terms of the NA rules.

Justification of ConCourt judgment

To understand the justification for this order, it suffices to examine the judgment of the Chief Justice. Indeed, the differences between her judgment and that of Justice Majiedt raise the question as to the need for his judgment, but that is for another analysis.

Before dealing with the merits of the challenge, the Court was confronted with the legitimate argument that the EFF application had to be dismissed for unreasonable delay. The Chief Justice accepted that no adequate explanation had been offered for the 14-month delay, but then proceeded to offer her own justification for why the Court was obliged to decide on the merits of the challenge.

After setting out cogent reasons for finding that the lengthy, unexplained delay was unreasonable, the Chief Justice finds that it cannot dismiss the challenge to the decision of the previous NA, and where obvious disruption to government will take place, notwithstanding the fact that the governance of the country has moved on, now 4 years after being dealt with by the NA.

In essence, the CJ found that “accountability is one of the foundational values of our Constitution, and the National Assembly bears the responsibility to ensure that the President is held accountable. The issues are of tremendous importance. It would be injudicious to permit delay to foreclose an interrogation of whether the National Assembly has fulfilled its responsibility of holding the President accountable, where the delay has neither caused prejudice nor hindered this Court’s ability to adjudicate the matter and the merits are, at least, arguable.”

The decision on the merits was decided essentially on the basis that accountability, in this case of the President, cannot be swept aside by his commanding a majority of the members of the NA.

The reasoning is captured in the following paragraph: “A rule allowing the National Assembly to thwart an impeachment motion at an early stage, despite a finding that the complaint is sufficiently substantiated, would fall foul of the Constitution for multiple reasons. It would, for example, foreclose any participation by any person or party in a further impeachment process; bar ‘appropriate action’ in the form of testing and examining evidence and informed debate and engagement in the impeachment process ‘before its fate is decided’; deny a genuine platform for the ventilation of informed views on a matter of momentous national importance; and deprive the citizenry of the opportunity to be ‘active, informed and engaged’ and to ‘properly hold their elected representatives accountable’ by not informing them ‘of the relative merits’ of the impeachment motion.”

It is hard to argue to the contrary. The entire structure of the impeachment process once a member of the NA lodges a motion in terms of section 89 of the Constitution for the NA to initiate an inquiry the removal of the President for conduct that falls within the ambit of section 89 is to ensure that so serious a step as impeachment be conducted on the basis of a justifiable basis; that is that the alleged conduct does indeed meet the somewhat open text of section 89.

By ensuring that an impeachment committee did not have the opportunity to properly consider a detailed report of the Ncgobo panel, the majority of the NA subverted the structure that it was obliged to create following earlier decisions of the Court.

The way forward

The majority judgments reveal a court that takes very seriously its role as an independent custodian of the Constitution and its values. But it also raises two intriguing possibilities for the way forward.

At footnote 191, the CJ raises the possibility of witnesses collapsing under cross-examination, leaving the motion with an insufficient evidential basis for proceeding, in which case a report from the impeachment committee that there is no merit in the case means that the committee can then terminate its inquiry, in which case there would be the equivalent of a discharge of the complaint.

But the President may, on legal advice, take the view that it is preferable to approach the high court with an application setting aside the Ngcobo report on grounds, for example, of irrationality. That is, let a court rather than politicians decide on legal questions.

The CJ notes that in a case where the report is set aside on review, the impeachment proceedings terminate.

That the President did approach the Court after the report was lodged to set it aside, which application was dismissed on the grounds of refusal of direct access and which application was not then pursued as a result of the vote of the NA, indicates that he was then advised that the report could not pass legal muster.

This means we may need to watch this legal space. The last word still awaits. DM