There was nothing unconstitutional in appointing a retired judge to chair the panel that investigated the docking of the Russian cargo ship Lady R in December last year, said President Cyril Ramaphosa in court papers last week.
Ramaphosa was answering to a court case in which the DA has challenged the constitutionality of the composition of the panel appointed by the president to investigate the controversial circumstances surrounding the docking of the ship, after speculation that the ship was being used to transfer arms and ammunition to Russia.
The DA has not challenged the outcome of the investigation or the fact that its report was not made public. Rather its court case is a “principled” one: that the panel should not have been chaired by a retired judge as this was in breach of the separation of powers.
“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 in the Pretoria high court in September.
Ramaphosa announced the investigation after the shock press briefing on May 11 by US ambassador Reuben 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.
But Ramaphosa says the DA’s case is “moot”, or academic, because there is no “live” dispute since the panel’s work is done. Its report consisted of factual findings that were not binding on him and his office relied on them to inform a plan to address shortcomings identified in it, said the president.
“Courts are not there to decide principled complaints which have no impact on any live dispute,” he said.
Recounting how he decided to establish the panel, Ramaphosa said he had already decided it was necessary to investigate the Lady R’s presence in Simon’s Town before Brigety’s infamous press conference.
The president chose an investigative panel because, though he is empowered to appoint commissions of inquiry, a commission “would not have been appropriate”. Commissions were generally of a public nature, so would not be well-suited to an investigation that involved classified information.
Then, because of “the seriousness of the matter and its potential constitutional and diplomatic consequences”, he decided it was “necessary to appoint a credible and independent panel whose integrity was beyond question”.
He took legal advice, including on the judgment that the DA relied on in its own court papers for why he had acted unlawfully — South African Association of Personal Injury Lawyers v Heath. The DA argued that this judgment of the Constitutional Court supported its case that a judge should not have headed up the Lady R panel. But Ramaphosa said the facts of the Heath case were “not applicable in this matter” — as Heath dealt with the appointment of a judge exercising investigative powers under legislation.
“Justice Mojapelo was not required to exercise investigative powers vested in a judge or an acting judge by a piece of legislation. He was appointed as a former judge to preside over a panel, but he was certainly not exercising judicial powers.”
Ramaphosa said the Constitutional Court in any event “expressly cautioned” in Heath against hard and fast rules as to when judges can perform non-judicial functions; and said that each case was to be determined in its own context.
“The contention by the applicants that it is always inappropriate for a judge to be appointed to a panel such as [this] one ... therefore stands to be rejected,” said Ramaphosa.
He said that in his capacity as head of state, “I have wide powers”.
“In the execution of my duties, I need assistance in all forms and shapes. It is my discretion to use the best available methods to investigate any matter of national interest,” he said. The appointment of a retired and well-respected judge as chair would “serve the interests of independence and impartiality”.
This was not the first time the president had appointed a panel of this nature, he said. In 2002, former president Thabo Mbeki appointed two high court judges, Sisi Khampepe and Dikgang Moseneke, to cover the Zimbabwean elections “and make a determination as to whether they were free and fair,” he said.
“There was no objection raised to the appointment of two sitting judges to lead that process, nor could there have been any objection,” said Ramaphosa.
He said the Lady R panel’s terms of reference were not made public because doing so would have created a risk to national security. But when invitations were issued to make submissions to the panel, those invited were “informed in general terms of what the panel’s mandate was, and given as much information as possible without compromising national security”.
Ramaphosa said his decision that the panel’s full report would not be made public was “not one that I reached in advance of receipt of the report”.
“It was deliberately based on the content of the report, which would create a threat to national security if disclosed to members of the public.”
However, when the Sunday Times asked the president’s spokesperson Vincent Magwenya on June 2 — before the completion of the panel’s investigation — first, whether any part of the panel’s work would be public and, second, whether the report would be made public, Magwenya responded: “The work of the panel will not be public, nor will its report be made public.”
A question to Magwenya on this had not been answered by the time of publication. This story will be updated when an answer is received.
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