The independent panel that found President Cyril Ramaphosa had a case to answer for impeachment had “misconceived its mandate ... and considered matters not properly before it”, said Ramaphosa in an affidavit filed at the Constitutional Court on Monday.
It was “most unfair to me”, he said.
The president has asked the apex court to declare the panel’s report unlawful and set it aside. He also asked the court to declare “any steps taken by the National Assembly pursuant to the report equally unlawful and invalid”. Parliament was scheduled to debate the establishment of an impeachment inquiry on Tuesday, but this may delay it.
Ramaphosa went directly to the highest court, saying his application was within its exclusive jurisdiction 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.
In his affidavit, Ramaphosa said the panel, chaired by former chief justice Sandile Ngcobo, had misunderstood its mandate. In terms of the impeachment rules, even before an impeachment motion goes to the independent panel, it must already prima facie show a case to answer for impeachable conduct, he said. The panel’s job, thereafter, is to determine whether there is “sufficient evidence” for this.
“In making its assessment whether there is sufficient evidence ... the panel must bear in mind that serious misconduct is confined to the president’s deliberate personal conduct in bad faith,” said Ramaphosa.
Yet in its report, the panel interpreted the rules to mean it must decide whether there was a prima facie case to answer — it was “mistaken”, he said. He argued the panel also took the wrong approach to how it treated the information at hand, by saying there was no difference between evidence and information.
But not all information is evidence, said Ramaphosa. Evidence must be admissible, reliable and credible, he said. Here, information the panel had placed “heavy reliance” on — like a Namibian police crime intelligence report and an audio clip of an apparent interrogation of a suspect — may have been unlawfully obtained, he said.
“In situations like this there is every incentive to hoodwink decision-makers to make rushed decisions based on half-truths. This is what appears to have happened here,” said the president. The panel had a duty to make formal inquiries whether evidence appeared to be admissible, reliable and credible. “The panel failed to do so,” he said.
In situations like this there is every incentive to hoodwink decisionmakers to make rushed decisions based on half-truths. This is what appears to have happened here.
— President Cyril Ramaphosa
Ramaphosa went through each of the specific charges in the original impeachment motion and said the panel had come to irrational findings on each of them. On the first charge, which charged him with breaching a constitutional prohibition on engaging in paid work, he said the panel had not considered whether he had acted in bad faith, let alone whether there was sufficient evidence for it. The same went for the second charge, of the failure to report the burglary to the Hawks, in breach of the Prevention and Combating of Corrupt Activities Act (Precca). Ramaphosa said he had not breached Precca and, “in any event, did not deliberately fail to report the matter in bad faith”.
Charges three and four were about him abusing his power for his personal benefit by getting the head of the presidential protection unit general Wally Rhoode to investigate the burglary. Ramaphosa said: “I did not say or suggest general Rhoode must personally undertake the investigation. I left it to general Rhoode to deal with the matter in whatever way was appropriate ... I understand he reported the matter to the deputy commissioner of police, who took charge of the matter.”
Ramaphosa said the panel’s findings on these charges were “on something unrelated”: that Rhoode embarked on a rogue investigation. But, he said, “I do not understand how that can be blamed on me”.
“First, the charges did not accuse me of anything of the kind. There is, in any event, no evidence that I was complicit in any rogue investigation,” he said.
Ramaphosa referred to the many questions raised by the report on the sale of the buffaloes to Sudanese businessman Mustafa Mohamed Ibrahim Hazim and on the source of the foreign currency — ultimately finding he had a case to answer on the source of the foreign currency.
“However ,matters relating to Mr Hazim and Phala Phala were not raised in any of the charges,” he said. He said he had made it clear in his submissions that he had confined himself to answering to the charges. The panel then resorted “to suspicion and speculation”, he said.
“The panel accordingly exceeded its mandate. It was most unfair to me because I was never called upon to address these issues beyond the four charges,” he said.
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