PETER BRUCE | Ramaphosa ought to get his day in court

While his opponents crow over a Constitutional Court judgment that could force President Cyril Ramaphosa to face a parliamentary impeachment committee over the $580,000 stolen from a sofa at his Phala Phala game ranch in Limpopo in 2020, little attention is being paid to Ramaphosa’s defence.

He has decided now to reignite the review application he made to the Constitutional Court after the report of a three-person judicial panel into the affair in 2022. The court denied him direct access, but after the ANC majority in parliament at the time voted against taking up the panel report, he dropped the application anyway, reserving the right to make it should the impeachment process ever be threatened again.

Now that it has, he will again take the panel report on review, but this time to a lower court, and no doubt whatever it finds will be appealed. As commentators and opposition parties such as the EFF and MK try to make the case for impeachment to begin quickly, Ramaphosa actually does have a credible case for a review, which could delay any impeachment hearing in parliament.

While the panel’s report accurately describes the quite reasonable general public incredulity and scepticism at the time over so much foreign currency being hidden in a sofa, then stolen, then not officially investigated, and Ramaphosa’s all-too-typical reluctance to take the public into his confidence, the fact is the report is weak.

Flawed report

The panel was headed by former chief justice Sandile Ncgobo, a favourite of former president Jacob Zuma, and included retired judge Thokozile Masipa, famous for finding Oscar Pistorius not guilty of murdering his girlfriend in 2014.

The panel interviewed only one witness, Ramaphosa himself. It heard no other evidence and relied on media reports and affidavits, primarily from opposition parties, to find that there was a prima facie case of corruption and violations of the constitution for him to answer.

In a court of law much of this would have been regarded as mere hearsay. In his review application Ramaphosa and his legal team tear into the panel report. “I submit,” reads the application Ramaphosa will now bring again, “that the panel misconceived its mandate [and] misjudged the information placed before it.

“The inquiry by the panel is a first step in the removal proceedings under section 89 of the constitution. If there is no valid report of the panel, the second step, which is the establishment of an impeachment committee, may not be taken.

“The third step, namely the placement of the item for the removal of the president for a vote in parliament, may not be taken as well.”

Ramaphosa argues that the National Assembly may only remove a president if it can be proven he or she has broken laws in bad faith. The assembly’s rules are quite clear. Under rule 124(6) an MP can request the creation of a section 89 inquiry (the establishment of the panel) provided their motion is limited to a “clearly formulated and substantiated charge” which must, prima facie, show the president violated the law and the constitution.

‘Panel was mistaken’

But rule 129G says the panel thus created “must make a recommendation to the Speaker whether sufficient evidence exists” to show that the president did indeed intentionally break the law. Yet the panel report confirmed only that a prima facie case existed. “The panel was thus mistaken,” Ramaphosa says in his application.

“It is a threshold requirement for any charge against the president that it discloses a prima facie case in terms of rule 129A. The panel ... must determine whether ‘sufficient evidence’ exists to warrant an impeachment process.

“The panel’s second misunderstanding of its mandate was that it overlooked the fact that ‘serious misconduct’ and ‘a serious violation of the constitution or the law’, as defined in the rules of the National Assembly, are confined to deliberate misconduct by the president acting in bad faith.

“The panel did not inquire into the president’s bad faith at all. It could not rationally conclude that there is sufficient evidence of the president’s misconduct without any assessment of the question.”

Ironically the third member of the panel, advocate Mahlape Sello, was evidence leader to the now-discredited Seriti commission of inquiry into the late 1990s arms deal. The commission, appointed by Zuma, found there was no corruption in the transactions, a finding later overturned in the North Gauteng High Court. It, too, found the commission had misunderstood its mandate.

So Ramaphosa will fight, and while he has a chance of success and frayed nerves in the markets and business might calm a little, this is going to be bitter and loud and scary. I hope he gets his day in court though because a public accounting from him has been way too long in coming.

• Bruce is a former editor of Business Day and the Financial Mail.