The Pretoria high court has reserved judgment in a case challenging the legality of President Cyril Ramaphosa’s decision to appoint a retired judge to lead an investigation into the docking of a Russian vessel known as Lady R in the Western Cape in 2022.
The DA, the ANC’s largest GNU partner, initiated the legal showdown against the president in September 2023 challenging his decision to appoint retired judge Phineas Mojapelo to lead an independent panel which probed circumstances surrounding the docking of the ship and the alleged loading of weapons to Russia.
Former US ambassador Reuben Brigety alleged SA supplied Russia with weapons. The allegations sparked tensions for SA with the Western powers fighting Russia’s invasion of Ukraine. .
The panel’s full report was never published but a published summary said there was no loading of weapons on the ship.
In the DA’s case the president breached constitutional separation of powers between the executive and the judiciary when he appointed Mojapelo to investigate and compile a secret report.
Advocate Michael Bishop for the DA on Tuesday told the court the party’s case was not to force the president to publish the findings of the report but rather challenged his conduct in appointing Mojapelo and the judge’s acceptance of the role.
The DA wants the court to declare the conduct of the president and Mojapelo unconstitutional. The consequence of such an order will hinder the president from appointing an independent panel in future in similar circumstances.
The constitution limits what tasks members of the judiciary can perform, even in retirement. He said these include not to “act as investigators and legal advisers to the executive branch.”
Bishop said since the panel operated within the presidency’s office and had secret terms of reference dotted by the president, that cast a cloud on the judge’s independence.
“Is it constitutionally permissible for a president to appoint a judge to conduct an investigation and provide legal advice? We submit, based on existing authorities, the obvious answer is no,” Bishop argued.
“It fundamentally undermines the separation of powers and the independence of the judiciary,” he said.
Judge Nicoline Janse van Nieuwenhuizen said it was common cause the retired judge was not executing judicial function in his panel appointment.
Bishop argued even so, Mojapelo was still bound to the judge’s code of conduct which stipulates a “judge discharged from active service must not accept any appointment that is likely to affect or be seen to affect the independence of the judiciary; which could undermine the separation of powers.”
He said the perception of the panel was that it was not independent because it was supported by officials and resources from the presidency, used the president’s letterhead when addressing correspondence and had no powers to compel any person to provide information or documents.
Unlike commissions of inquiry which operate independently from the presidency and conduct hearings publicly, the panel’s secrecy was a major factor to doubt its independence, Bishop said.
“The terms of reference, the process and the report is a secret. This is in stark contrast in the way in which judges operate. While the response to that is because it is issue of national security, that may be true but then it should have not involved the judge,” he said.
“The panel was housed within the presidency.”
Bishop said the judge was seen “acting under the banner of the executive” and it created the perception that there was no independence.
He said independence was also questioned in that the president hand-picked Mojapelo and did not consult the chief justice on which judge to appoint.
The president’s representative, advocate Fana Nalane, argued the president did not ask the panel for legal advice but rather the panel, like a commission, was a fact-finding body.
The judge asked whether the perception of a judge’s independence does not rely on transparency and lack thereof jeopardises independence.
Nalane said the that fact the panel operated in a secret manner, because the investigations were of national security matters, when compared to a commission, did not strip it of its independence.
“The president appointed an independent panel to establish the facts. The presidents did not ask for legal advice in forming a panel led by a judge, he was not borrowing the ropes of the judge in order to bring some sort of respectability to his decision,” he said.
Nalane argued Mojapelo simply being asked to investigate a matter by the president did not take away his independence. If it were the case, it would be argued the same for judges who head commissions.
Whether it is a panel or commission headed by a judge, the president appoints them for fact finding and that does not infringe on judicial independence.
“The president asked the panel to verify allegations; the same way justice [Raymond] Zondo was verifying allegations of state capture. The mere fact that the one is an inquiry and the other a panel does not change the substantive nature that it is a fact-finding inquiry.”
He said the decision not to appoint a commission in the Lady R matter was because it would have been probed publicly and expose security details.
“The commission would have asked how many bullets were purchased publicly. Those are secret things the head of state must protect. There are some things which are confidential.”
He argued the DA’s case was moot because the party brought the matter to court late.
The president appointed the judge in May 2023 and the findings of the panel were concluded in August 2023.
The case was initiated in September2023
“A court cannot be expected to give a judgment in vacuum. Courts are not here to dispense legal opinions. Lady R came and went,” he said.
Nalane said the president had wide executive powers and there was nothing in the constitution which made it unlawful for him not to appoint a panel headed by a judge.
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