The DA has approached the court over the Lady R controversy, saying it was unconstitutional for President Cyril Ramaphosa to appoint a judge to investigate the docking of the Russian cargo ship in Simon's Town in December.
“It is incompatible with the judicial office for a judge to be appointed to an unregulated and secret investigation panel which reports confidentially only to the executive,” said the DA’s Glynnis Breytenbach in court papers, filed earlier this month in the Pretoria high court.
Ramaphosa announced the investigation after the shock press briefing on May 11 by US ambassador Ruben Brigety, who said he was confident that weapons were loaded on to the ship. He accused South Africa of deviating from its non-aligned position in the Russia-Ukraine war, straining diplomatic relations between South Africa and the US.
The investigation would be an independent one by a three-person panel chaired by retired Gauteng deputy judge president Phineas Mojapelo, said the Presidency in late May.
In August, the panel found no evidence that weapons had been loaded onto the ship. The full report has remained confidential with only an executive summary publicly released in September. The investigation preceding its report was also conducted confidentially, and its terms of reference were not made public. It was not a commission of inquiry governed by the Commissions Act, and the panel did not have the power to subpoena evidence or witnesses.
The DA does not necessarily want to undo or set aside the investigation and report, saying it is “purely advisory and has no legal consequences”. But it has asked the court to declare that Ramaphosa’s appointment of a judge to chair the panel that conducted the investigation was inconsistent with the constitution and invalid.
Similarly, it wants the court to declare that Mojapelo’s acceptance of the appointment was also “inconsistent with the constitution and invalid”. It has only asked the court to set aside the report and investigation if it thinks it is necessary to do so.
Breytenbach said in approaching the court, the DA was “not seeking to impugn” the character of either Ramaphosa or Mojapelo.
“The applicants accept that they both believed that the appointment was constitutionally permissible. But they were mistaken,” she said.
The complaint is a principled one
— DA MP Glynnis Breytenbach
The DA was also not accusing the panel of being “part of any form of cover-up.
“The complaint is a principled one,” she added.
Breytenbach said certain executive functions were incompatible with the judicial office. Though there were no hard and fast rules about which functions judges could perform outside of judging, the courts had given guiding principles to consider to determine whether a task would stray too far from the judicial sphere and breach the separation of powers.
Some of these included whether a task was subject to executive control, if it was more appropriate to another branch of government and if it would entangle the judiciary in political controversy.
Investigating matters was not ordinarily a judicial function, said Breytenbach.
While judges sometimes carried out administrative tasks, it risked the separation of powers if a judge were to undertake an investigation for the executive. Here, the panel “operates at the direction of the president, using presidential resources, writing on presidential letterheads and represented by presidential spokespersons”, she said.
She revealed that one of the people approached to give evidence to the panel was DA MP Kobus Marais. When the panel asked him for a written submission and to interview him, it wrote to him on a letterhead of the president, she said.
“The panel has none of the independence that would permit judicial involvement. It is merely a tool of the president. It can never be constitutionally appropriate for a judge to be involved in that type of investigation,” she said.
The subject matter here was politically controversial, she said. “That is presumably why the president chose a retired judge to conduct the investigation — to lend the outcome the appearance of independence and legitimacy.”
But this was a problem constitutionally, said Breytenbach.
“The separation of powers does not permit the executive to cloak its functions and functioning in the garb of judicial impartiality and independence. The executive is free to investigate, but it cannot use the judiciary to do so,” she said.
Judicial proceedings almost always occur in public and judges almost always gave reasons for their decisions, she said. Here, Mojapelo had been “presidentially precluded from giving public reasons for his panel’s investigation”, she said.
She said this panel was “manifestly different” from a commission of inquiry, even though they are also appointed by a president or premier. The Constitutional Court had already said not all commissions should be headed by judges — it would usually depend on the subject matter. Also, commissions retain many characteristics of a judicial body, including that once appointed, they had a large degree of independence, their own staff and were by default held in public.
The president’s spokesperson Vincent Magwenya had previously compared the Lady R investigation to the probe into the July 2021 riots — whose report was also initially confidential. But, said Breytenbach, that investigation did not involve a judge.
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