President Cyril Ramaphosa
President Cyril Ramaphosa has launched a fresh legal bid in the Western Cape High Court to overturn the 2022 independent panel report that found prima facie evidence he may have committed serious misconduct and violated the Constitution in relation to the Phala Phala farm scandal, as parliament moves closer to constituting an impeachment committee following a Constitutional Court ruling earlier this year.
The application, filed by attorneys Harris Nupen Molebatsi Inc, seeks an order reviewing and setting aside the report compiled under Rule 129G of the National Assembly rules by former chief justice Sandile Ngcobo, retired judge Thokozile Masipa and advocate Mahlape Sello under Rule 129G of the National Assembly rules.
In his founding affidavit, Ramaphosa argued the panel misunderstood both its mandate and the legal threshold required under section 89 of the Constitution.
He quoted the National Assembly rules’ definitions of “serious misconduct” as “unlawful, dishonest or improper behaviour performed by the President in bad faith” and “a serious violation of the Constitution or the law” as conduct “amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”.
“The President may only be removed for intentional or malicious conduct in bad faith. Only deliberate misconduct can find the removal of the President,” the affidavit stated.
Ramaphosa contended that the panel incorrectly relied on a prima facie standard. “In the context of the scheme for the removal of the President from office, we therefore construe the phrase ‘whether sufficient evidence exists’ to mean whether … the President has a case to answer.”
He further argued the panel failed to distinguish between “information” and admissible evidence and improperly relied on hearsay material.
“The Panel did not apply any of these mandatory provisions. It did not appreciate the default rule that hearsay evidence must be excluded … 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,” the affidavit stated.
The papers specifically challenge the panel’s reliance on allegations and supporting material submitted by former State Security Agency director-general Arthur Fraser, including what Ramaphosa describes as a confidential Namibian police report and an audio recording.
“The Panel did not consider whether the confidential Namibian police report or the audio clip were lawfully obtained. On its own, this was an irregularity,” Ramaphosa stated.
On the substance of the allegations, Ramaphosa denied wrongdoing in each instance. On accusations that he performed undeclared paid work while in office, Ramaphosa said: “I did not do ‘other paid work’.”
On allegations that he violated section 34 of the Prevention and Combating of Corrupt Activities Act by failing to report the theft, he stated: “I did not contravene section 34.”
The affidavit also defended his interactions with Major General Wally Rhoode and rejected allegations that state resources were improperly used in the aftermath of the theft.
Ramaphosa further pointed to parallel investigations by the Public Protector, the South African Revenue Service, the Reserve Bank and parliament’s joint standing committee on intelligence, while also raising concerns about delays in bringing the review proceedings.
The president obtained consent from Chief Justice Mbuyiseli Madlanga Maya and Judge President Dunstan Mlambo Ledwaba in terms of section 47(1) of the Superior Courts Act to institute proceedings against the former judges who served on the panel.
The filing also seeks to nullify “the steps taken pursuant to the Report”, including processes now under way in Parliament after the Constitutional Court ruled in May that Rule 129I was unconstitutional and directed that the matter be referred to an impeachment committee.
“The report of the Independent Panel, comprising the first, second and third respondents, rendered in terms of Rule 129G of the Rules of the National Assembly and particularly the recommendations in paragraph 264 of the Report, are reviewed, declared unlawful and set aside,” the notice of motion stated.
Ramaphosa called for parliament “to show cause why the Report and the steps taken pursuant to the Report should not be reviewed and set aside” and to provide the record of proceedings within 15 days.
The litigation revives the Phala Phala matter nearly four years after African Transformation Movement parliamentary leader Vuyo Zungula first lodged a motion seeking Ramaphosa’s removal under section 89(1) of the Constitution.
The complaint stems from the theft of foreign currency allegedly concealed inside furniture at the president’s Phala Phala game farm in Limpopo.
Parliament subsequently established the three-member independent panel in terms of Rules 129D to 129H to determine whether sufficient evidence existed to show that the president may have committed a serious violation of the Constitution or the law, serious misconduct or was unable to perform the functions of office.
The panel delivered its report on 30 November 2022 and concluded that the information before it “discloses, prima facie, that the President may have committed” serious violations of the Constitution or the law and serious misconduct.
Ramaphosa initially approached the Constitutional Court in December 2022 to challenge the report, but the matter stalled after the National Assembly voted against adopting the panel’s findings later that month.
It was revived last month when the Constitutional Court, in Economic Freedom Fighters and Another v Speaker of the National Assembly, found Rule 129I unconstitutional because it allowed parliament to terminate impeachment proceedings without a substantive inquiry, ordering instead that the process proceed through an impeachment committee.
Parliament has since begun preparations to constitute the committee, although opposition parties have accused the ANC of delaying the nomination process.
The Western Cape High Court application is expected to run alongside the parliamentary impeachment process as both unfold in parallel.