Lawyers representing President Cyril Ramaphosa will tell the Constitutional Court a panel led by former chief justice Sandile Ngcobo relied on hearsay without any evidence.
The panel looked into whether Ramaphosa should be impeached over the theft of millions of rand from his Phala Phala game farm. This comes as the president tries to fend off a legal challenge launched by the EFF and ATM challenging the decision by the National Assembly to discard the adoption of the panel’s report, which could have led to impeachment proceedings against Ramaphosa.
The parties are set to lock horns before the apex court on November 26.
The ANC is supporting the president, armed with a legal opinion the party relied on when it instructed its parliamentary caucus to vote against the adoption of the panel report.
Ramaphosa, in an affidavit, says the panel report made several errors in law and arrived at conclusions without any supporting evidence before it and failed to understand its mandate.
The independent panel should have considered the source of the confidential information of the Namibian police report and the audio clip on how they made their way from Namibia — or wherever the audio is from, the independent report does not say — to parliament.
— President Cyril Ramaphosa, in an affidavit
“It [the independent panel] did not appreciate that the default rule was hearsay evidence must be excluded and can only be admitted in certain defined circumstances,” the affidavit states.
“As a result, the independent panel made conclusions, based on hearsay statements, without regard for the law. Save for the limited evidence the president introduced in his response, there was no evidence before the panel.
“The independent panel should have considered the source of the confidential information of the Namibian police report and the audio clip on how they made their way from Namibia — or wherever the audio is from, the independent report does not say — to parliament.”
Former head of state security Arthur Fraser rocked South Africa's political scene in 2022 when he blew the lid on the millions of rand stolen from Phala Phala that was allegedly stashed in couches in the president’s private residence. Fraser alleged there was a cover-up of the crime to avoid the president having to answer why he had so much foreign currency in his house.
The allegation and Ramaphosa’s admission that about $580,000 (R10.29m) had gone missing prompted the National Assembly to appoint an independent panel made up of retired judges.
The panel found there was prima facie evidence that Ramaphosa may have abused his power, committed serious violations and breached anti-corruption laws. The National Assembly rejected adopting the report, with the ANC using its majority to quash it.
Adoption of the report would have led to impeachment proceedings being opened against the president.
ANC secretary-general Fikile Mbalula in his affidavit before the apex court said the party did not cajole its MPs to vote against the report. He said the party’s highest decision-making structure between conferences, the national executive committee, applied its mind and relied on legal advice before instructing its members to vote against the adoption of the report.
Legal advice
Mbalula’s papers show the party sought legal advice from senior counsels Les Morison and Mfundo Salukazana, who advised that the report fell short of the high bar set for the impeachment of a sitting president.
In his papers, EFF leader Julius Malema says the mistake made by the Assembly in rejecting the adoption of the report led to the re-election of Ramaphosa after the May election.
“The president contends that the Assembly’s decision is not reviewable for want of an enduring legal effect. This allegedly nonsuits the EFF, absent a constitutionality challenge. The opposite is true. Apart from this not being a review (so the language of direct, external, legal effect being inapposite), parliament, by its decision, allowed the president to remain,” he said.
“Had parliament acted lawfully, and the impeachment process been permitted to continue, he may not have been eligible to do so: having regard to the panel’s findings, he would be impeached. Given the impeachment process was pre-emptively terminated, he ran for re-election as an MP on the ANC’s list and was later re-elected president.”
Ramaphosa has so far escaped legal liability over the Phala Phala saga after the National Prosecuting Authority last month said it would not prosecute anyone related to the matter. The public protector, the SA Revenue Service and the Reserve Bank have also cleared Ramaphosa of any wrongdoing.
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