Phala Phala: Ramaphosa’s request for direct access to ConCourt denied

The Constitutional Court has dismissed President Cyril Ramaphosa’s application to set aside an independent panel’s report to parliament recommending he had a case to answer for possible serious violations of the constitution and the law over the Phala Phala scandal.

The ConCourt said Ramaphosa had not made out a case for coming directly to the apex court.

In seeking to set aside the report, Ramaphosa went to the ConCourt on the basis that his application was within its exclusive jurisdiction.

He said this was because when the independent panel was conducting its preliminary inquiry, it was fulfilling a constitutional obligation of parliament. And in terms of the constitution, only the apex court may decide whether parliament has failed to fulfil a constitutional obligation, he said. Alternatively, he argued that it was in the interests of justice to be granted direct access to the highest court.

However, in a brief order on Wednesday, the ConCourt said that “no case has been made out for exclusive jurisdiction or direct access”. The case must therefore be dismissed, it said. It made no order on costs.

The panel’s report was the result of a preliminary enquiry into evidence put forward in the impeachment motion by opposition party ATM and to determine whether the evidence showed a prima facie case of impeachable conduct.

After its preliminary investigation, the panel recommended that the information before it had disclosed, “prima facie, that the president may have committed a serious violation” of the constitution and the law.

The possible constitutional violations were the prohibitions on members of cabinet undertaking paid work other than their government work, on cabinet members exposing themselves to a risk of a conflict of interest between their official and private interests and acting in a way that is inconsistent with their office.

The possible violation of the law was about the duty, under the Prevention and Combatting of Corrupt Activities Act, to report the theft to the Hawks (he had instead reported it to the head of his presidential protection unit).

But in his application to the ConCourt, Ramaphosa said the panel had “misconceived its mandate ... and considered matters not properly before it”. He said the panel had mangled how it had done its work and how it had assessed the information before it.

The ATM, in its answering affidavit to the ConCourt, said this was not a case of exclusive jurisdiction as the panel was independent of parliament and its work could not be attributed to parliament as an institution. ATM leader Vuyo Zungula also defended the panel’s report and process.

The ConCourt’s order does not mean that it rejected Ramaphosa’s objections to the findings of the Phala Phala report and he may yet challenge it in the high court. The report has no binding legal effect, its job was to advise parliament on whether to proceed with a formal impeachment enquiry. In December parliament voted against the motion.

However, the ConCourt’s order may shore up support for a new impeachment motion. When the ANC decided that its MPs would vote against the motion, one of the factors motivating the decision was reportedly that the report was under review.

The much anticipated report by the public protector into the Phala Phala scandal is yet to be released.

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