CAIPHUS KGOSANA | Ramaphosa may have won round 1, but the next two may prove more taxing

You don’t need a legal degree to deduce upon your first reading of the report of the independent panel set up by parliament to probe the Phala Phala saga, that it will be set aside by the first court asked to review it. Given the massive impact of the findings on him and the office he holds, President Cyril Ramaphosa has gone straight to the Constitutional Court for relief, and I suspect it will hear him out.

LISTEN | If Ramaphosa is re-elected, SA may have foot the Phala phala legal bills

In their review application before the apex court, Ramaphosa’s team use a legal scalpel to surgically pick the report apart in support of his assertion that the panel’s findings were irrational and illogical and should be set aside. In the report, the panel concluded prima facie that in light of all the information placed before it, the president may have committed a serious violation of the constitution; may have acted in a way that is inconsistent with his office; and may have committed “serious misconduct by exposing himself to a situation involving a conflict of interest between his official responsibilities and his private business”.

In seeking to review these findings, Ramaphosa first argues that the panel misinterpreted then exceeded its mandate. This mandate was to determine “whether sufficient evidence exists” to show that the president committed serious violation of the constitution or the law, or could be guilty of serious misconduct in how he handled the theft of US dollars at his private farm. He argues that the panel misconstrued this to conclude that its mandate was to determine whether “there is a prima facie case against the president” warranting a separate impeachment inquiry under section 89 of the constitution.

Ultimately, an overreliance on the allegations of former spy boss Arthur Fraser — largely unsubstantiated hearsay and information that may have been obtained illegally — is proving to be the report’s undoing.   

It is under the subhead, “Irrational evaluation of the evidence”, where Ramaphosa’s legal team is at its most devastating in picking the panel’s work apart. Here, they end up literally schooling a former chief justice, a former high court judge and a senior advocate in how to apply the law of evidence. Ultimately, an over-reliance on the allegations of former spy boss Arthur Fraser — largely unsubstantiated hearsay and information that may have been obtained illegally — is proving to be the report’s undoing.   

Ramaphosa states quite convincingly that the panel’s use of a prima facie framework to conclude he may have violated the constitution, relies on a flawed approach wherein Fraser makes allegations without sufficient evidence to back them up, and the panel puts these to him for a response then makes a conclusion of possible guilt based on the gaps in his responses. This, Ramaphosa argues, places a reverse onus of proof on him rather than the person making the allegations.

LISTEN | "The reality is that DD is not captured", says Malema

“This was irrational because the panel’s task was to determine the sufficiency of the evidence that was before it; its task was not to consider whether there are questions I should answer. The only rational way for the panel to achieve its purpose is to ask, ‘Is this evidence, on its own, enough to show a serious violation of the law or the constitution or serious misconduct?’. The panel asked a different question that missed the mark set in the panel’s mandate.”

Ramaphosa’s complaint here, and it’s quite valid, is whatever he did not answer was misconstrued by the panel as an admission of guilt.

“For similar reasons, it was irrational of the panel to focus on an absence of explanations. The absence of evidence is not evidence of absence. The panel’s approach reduced this to: anything I did not answer is prima facie true”.

He further takes issue with paragraphs 163 to 168 on pages 55, 56 and 57 of the report, where the panel seems to have accepted Fraser’s serious yet unsubstantiated allegation that Ramaphosa asked the president of Namibia to assist with the apprehension of Imanuwela David, the prime suspect in the theft of dollars at Phala Phala.

“The only information — note ‘not evidence’ — before the panel on this point was Mr Fraser’s allegations. The rest of the panel’s reasoning was based on nothing more than an absence of evidence to the contrary. The panel should have asked whether the evidence was sufficient to support its conclusion. There was no evidence, let alone sufficient evidence because all the panel had was Mr Fraser’s say-so. The rest of the panel’s reasoning is an illogical and irrational attempt to patch together evidence from an absence of evidence.”

The rest of the application seeking a review of the panel’s report is argued along the same lines of irrationality, lack of evidence, reliance on hearsay and overstepping of mandate.

Having convinced their man against resigning when the report was first made public, Ramaphosa’s supporters mobilised a vocal defence and ensured he emerged from the ANC national working and national executive committee meetings on the findings of the panel a political victor.

The National Assembly will certainly not adopt the panel’s report when it meets on December 13; the ANC has issued the line of march, and any rebel MP will face immediate expulsion from the party.

LISTEN | Phala phala report and its significance

But the renewables (that’s how they are referring to Ramaphosa fans nowadays) must put the champagne on ice. A flawed report does not entirely absolve the president. Two key investigations may still stump him — those of the SA Reserve Bank and the SA Revenue Service. These institutions are probing possible illegal trade in foreign currency at his farm and whether the country’s tax laws were complied with.

If any of these investigations finds that our laws have been broken, the Hawks will have no choice but to recommend a criminal prosecution. Ramaphosa may not only face certain impeachment but possible imprisonment.

Retired chief justice Sandile Ngcobo, retired high court judge Thokozile Masipa and advocate Mahlape Sello, SC, will be left with egg on their face when their report is set aside; but Ramaphosa must not have the last laugh yet. His problems are far from over.