The DA will take its legal challenge against President Cyril Ramaphosa’s decision to appoint a retired judge to lead a secret investigation into the docking of a Russian vessel in Cape Town in 2022 to the Supreme Court of Appeal (SCA) after suffering a blow at the high court in Pretoria.
The legal showdown started in September 2023 when the party challenged Ramaphosa’s decision to appoint retired judge Phineas Mojapelo to lead an independent panel to probe the circumstances surrounding the docking of the vessel, known as Lady R, and the alleged loading of weapons to Russia for use in its war against Ukraine.
The panel’s full report was never published, but a published summary said there was no loading of weapons on the ship.
The DA is seeking to have the conduct of the president and Mojapelo declared unconstitutional, which would hinder the president from appointing an independent panel under similar circumstances in future.
Judge Nicoline Janse van Nieuwenhuizen, who dismissed the DA’s application in September on grounds that the case was moot because there was no live controversy, last week granted the party leave to appeal.
The issues are complex and deserve the attention of the Supreme Court of Appeal.
— Judge Nicoline Janse van Nieuwenhuizen
“The principles applicable to the question of mootness in a constitutional context are complex, and having carefully considered the submissions on behalf of the applicants [the DA], I am of the view that the application has prospects of success,” Janse van Niewenhuizen said in her order.
“The issues are complex and deserve the attention of the Supreme Court of Appeal.”
The crux of the DA’s case is not to force the president to publish the findings of the report but rather to challenge whether it is constitutionally permissible for a president to appoint a judge to conduct an investigation and provide legal advice.
The DA argues that Ramaphosa’s conduct fundamentally undermines the separation of powers and the independence of the judiciary.
The party’s case is anchored on the secrecy of the report and contends it breaches the code of judicial conduct, which stipulates that 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”.
The DA maintains that, unlike commissions of inquiry, which operate publicly, the panel’s secrecy casts doubt on its independence.
The president’s legal team has argued that the panel, like a commission, was a fact-finding body. It had operated in a secret manner because the investigations were of national security matters, but that did not strip it of its independence.
The relief sought by the DA would lead to a rigid rule that a retired judge may not be appointed to an investigative panel.
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