The EFF's Phala Phala court case is “driven by its political agenda,” said President Cyril Ramaphosa’s counsel in court papers to the Constitutional Court.
Ramaphosa’s counsel filed its written argument to the apex court last month. The EFF is challenging the National Assembly’s decision, in December 2022, not to hold an impeachment inquiry into allegations against Ramaphosa after a burglary at his Phala Phala game farm in 2020.
An independent panel chaired by retired chief justice Sandile Ngcobo found information submitted to the panel disclosed a prima facie case that Ramaphosa may have committed serious misconduct.
Ramaphosa’s counsel, Wim Trengove SC, said in his written argument the EFF waited almost a year, until a few months before the national and provincial elections, to launch its application. The EFF’s attorneys wrote to former chief justice Raymond Zondo asking that its application be heard and decided before the elections — “for the National Assembly to have an opportunity to give effect to this court’s judgment”.
“The EFF’s motive was, in other words, that this court should speed up its adjudication of the application to ensure a debate before the National Assembly on the president’s fitness for office on the eve of the national elections. It is clear the EFF’s application is driven by its political agenda,” Trengove said.
The delay was unreasonable and the EFF had not explained it or asked the court for forgiveness, said Trengove. There was also nothing irrational about the National Assembly’s decision because Ngcobo’s panel had misunderstood its mandate, he said.
Looking at the applicable laws and rules, Trengove said the power to remove the president under the constitution was a “permissive” one. “The section does not oblige the National Assembly to [remove the president] even if the president has been guilty of serious misconduct,” he argued. The assembly must also consider whether his removal was “prudent, wise and in the best interests of society”, he said.
The rules also defined “serious misconduct” as requiring bad faith before a president could be impeached. Similarly, before the president could be found to have acted in serious violation of the constitution or the law he had to have acted intentionally or maliciously and in bad faith.
“It follows that only deliberate conduct, in bad faith, renders the president impeachable. Transgressions in good faith do not,” said Trengove. Yet Ngcobo’s panel had not even considered whether Ramaphosa had acted in good faith before it made its prima facie finding, he said.
The panel was also required to determine “whether sufficient evidence exists” that the president was guilty. Instead, the panel interpreted this to mean whether there was a prima facie case — a lower standard. The panel also equated information with evidence — “a serious misdirection”, said Trengove.
Even if the panel’s report was not fundamentally flawed, the National Assembly’s decision would still have been rational. Under the rules, the Assembly’s mandate was not only to determine whether the president was guilty of gross misconduct. Its mandate also entitled it to assess whether MPs agreed with the recommendations of the panel, whether the charges were weighty enough to warrant an impeachment inquiry, whether there was a realistic prospect an inquiry would find the president guilty and whether, in all the circumstances, it was prudent, wise and in the public interest to proceed with an inquiry.
“We accordingly submit that the National Assembly’s decision was entirely rational,” said Trengove.
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