By Lehlohonolo Lehana.
The Western Cape High Court Judges, President Nolwazi Mabindla-Boqwana, Judge Mark Sher, and Judge Ncumisa Mayosi are hearing arguments in the president Cyril Ramaphosa challenge to the findings of the Section 89 independent panel.
Ramaphosa wants to review and set aside the Phala Phala report.
He is facing impeachment over his conduct following the theft of US dollars from his farm Phala Phala in 2020.
The panel was unconvinced by Ramaphosa’s account of the theft of $580,000 from a couch in a room on his Phala Phala farm in February 2020, and did not accept his claims that the money had been the proceeds of a buffalo sale.
Its 82-page report, found that the President had a case to answer over serious violations of the Constitution for exposing himself to a conflict of interest, doing outside paid work and contravening the Prevention of Corrupt Activities Act.
Ramaphosa previously approached the Constitutional Court in 2022 for direct access to challenge the report. However, the court dismissed his request, and the application was later abandoned after the National Assembly vote rendered it moot.
He has now revived the matter in the Western Cape high court. His core argument, that the panel “misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges” against him, is mostly unchanged; as is his contention that the panel made findings against him about matters outside of the four charges he was asked to respond to.
His lawyer Advocate Wim Trengove contended that the panel failed to properly apply Parliament’s impeachment rules, particularly the requirement that conduct amounting to a serious constitutional violation, gross misconduct or a contravention of the law must have been committed intentionally.
Trengove argued that the Section 89 panel report had failed to make a “qualitative assessment” and “balancing exercise” of all the evidence, including the President’s submissions, and failed to ask the “right question: Does the evidence show the President acted wilfully and in bad faith?”
Ramaphosa had not knowingly violated any rules, the senior counsel argued; “Even if he’s wrong, he acted in good faith.”
Trengove argued it was not enough for the panel to say prima facie evidence existed, but that “sufficient evidence” was the requisite standard to warrant a public inquiry.
Against this backdrop, Trengove argued, subjecting the President to a public inquiry would cause him irreparable reputational harm and public humiliation. The impeachment committee, which included “the President’s adversaries”, was “the equivalent of a political trial” but without an independent judge.
Advocate Anton Katz, for African Transformation Movement (ATM) leader Vuyolwethu Zungula, who brought the impeachment motion in July 2022, and the party, argued that Ramaphosa could not challenge the Section 89 report at this stage, but had to wait until the proceedings were finally decided in the National Assembly.
“We are here because the President had $500,000 in cash on his arm and he did not do what the law required him to do… The public deserve to have an answer,” Katz told the court.
At one stage the court asked about “damage to the national interest” should the President appear in impeachment proceedings, given the disruptive and destabilising effect, as Judge Sher put it.
The national interest is an issue previously raised in the 24 July judgment that granted Ramaphosa an interdict against public parliamentary impeachment hearings.
Judge Diane Davis, who penned what became the majority judgment, said: “The national interest requires stability in the functioning of the presidency. The disruption caused by impeachment hearings should not be allowed to happen, as there is a prospect that the impeachment process may be set aside as unlawful.”
Katz made short shrift of Judge Sher’s question, noting: “Every single president will say that.”
But his comments that the President should have thought of that disruption “before he stashed dollars” were cut off by the bench. “No one suggests the President stashing [dollars],” said Sher.
The court again pointed out the only charges the parliamentary impeachment committee could consider are the ones in the Section 89 panel report – Ramaphosa conducted paid work outside his role as President, failed to report the theft of the dollars, and became involved in conflicts of interest.
This exchange highlighted the tensions between legal questions before the court and the political questions that drive the Phala Phala saga in Parliament and elsewhere.