By Lehlohonolo Lehana.
The Constitutional Court has reserved judgement in the Phala Phala case on Tuesday, 26 November 2024, with the Economic Freedom Fighters (EFF) and African Transformation Movement (ATM) arguing that they will reinforce Parliament’s role in holding the executive accountable.
The parties also believes the case will establish a key precedent, signalling that future presidents must exercise their power responsibly and ethically.
The matter was brought to court by the EFF after the Reserve Bank, South African Revenue Service and the Public Protector each pursued inquiries into the matter and found no wrongdoing on the part of President Cyril Ramaphosa.
The investigations came after former correctional services commissioner Arthur Fraser filed a criminal complaint against Ramaphosa in 2022, accusing him of covering up a theft at his Phala Phala farm in Limpopo.
Fraser claimed that $4-million concealed in couches and mattresses was stolen from the farm in February 2020.
Months after the allegations surfaced, Parliament, under Section 89 of the Constitution, established an independent panel which had to determine whether Ramaphosa had violated the Constitution or the Code of Executive Ethics.
The committee found there was prima facie evidence that Ramaphosa might have violated Section 96(2)(a) of the Constitution “by acting in a way that is inconsistent with his office”.
The report was later debated by Parliament in December 2022, when at least 214 MPs voted against its adoption, with 148 votes in favour and two abstentions. The 214 votes consisted of 212 ANC votes and one vote each from Cope and Al Jamah-ah.
About 2,000 EFF supporters arrived at the ConCourt at about noon, while proceedings were still ongoing.
During the proceedings, the EFF’s legal representative, Advocate Kameel Premhid, said the independent panel that considered the evidence against Ramaphosa acted as a sifting mechanism, and played that role as an extension of the National Assembly (NA).
He argued there were shortcomings in the NA’s rules that allowed it to vote down a report that found a prima facie case to answer.
“The National Assembly itself does not retain some type of overarching discretion that allows it to engage the panel’s report beyond the content of the panel’s report.”
The EFF said at the time of the vote, there was no evidence to support Ramaphosa and the African National Congress’ (ANC) arguments that the report was fatally flawed.
Neither has that report since been overturned on review.
“To evidence how bad this report was, misunderstands and thus violates the role to be played by the National Assembly at the point of when prima facie evidence is considered.”
The ATM said that, like ordinary citizens, the president must have his day in court if there’s evidence that he may have transgressed the law.
The ATM’s legal representative, advocate Anton Katz, said it was the “height of irrationality” for the ANC to dismiss the report because other investigations outside of Parliament were still pending at the time.
“Now I ask this court, what have the Hawks got to do with this case, what does the reserve bank got to do with this case, what does SARS have to do with the case, what does the Public Protector have to do with this case? Nothing. They are not involved in impeachment.”
Katz said the debate over whether the panel relied on prima facie or sufficient evidence was merely a red herring.
“If we stand back, and look at the elephant in the room. What’s the elephant in the room? A couch with five hundred thousand dollars there, unaccounted for. And we all just turn a face to that. That’s what the elephant in the room is.”
Ramaphosa’s lawyer Advocate Geoff Budlender blamed the EFF for acting on the matter very late, arguing that Ramaphosa was long called to account for Phala Phala.
“The EFF is wrong to say Ramaphosa has not been held accountable,” he said.
He further mentioned that the President’s farming venture has never been a secret, mentioning perhaps the panel should have acted on whether Ramaphosa was open about that or not.
Advocate Tembeka Ngcukaitobi representing the ANC, slammed the EFF’s claims that ANC MPs were somehow threatened to side with Ramaphosa. “There’s no evidence,” he said.
Ngcukaitobi argued that the ANC members acted as they should have as MPs.
He also added that the National Assembly’s decision was rational.
The ANC, Speaker and Ramaphosa are all defending the parliament’s decision of cutting off the investigation to the president’s impeachment.
Meanwhile Emmanuela David, Floriana, and Ndilinasho Joseph appeared in the Modimolle Regional Court on Tuesday for pre-trial proceedings over theft of over $580,000 at the Phala Phala farm.
They face charges including conspiracy to commit housebreaking with intent to steal, theft, and money laundering.
Limpopo NPA spokesperson Mashudu Malabi-Dzhangi said the state is prepared to proceed with the case.
“All the parties are ready to start with the trial in May next year from 19 to 29 [May]. The state is ready, and we intend to bring almost 23 witnesses.
“The defence has also indicated that their accused persons are going to testify, and they are going to bring three witnesses, “said Malabi-Dzhangi.