The National Assembly was entitled to reject the report of an independent panel that found there was a case for President Cyril Ramaphosa to answer on Phala Phala because the panel “asked the wrong question”, the Constitutional Court heard on Tuesday.
If the panel asked the wrong question, it would inevitably reach the wrong answer, said counsel for the president, Geoff Budlender SC.
The highest court was hearing the EFF’s and ATM party’s application to declare that parliament acted unconstitutionally when it voted against holding an impeachment inquiry into alleged impeachable conduct by Ramaphosa in the events surrounding the burglary at the president's game farm in February 2020.
The National Assembly rejected a report by an independent panel, chaired by former chief justice Sandile Ngcobo that Ramaphosa had a case to answer for possible “serious violations” of the constitution and the law.
On Tuesday, the court heard that, under parliament’s presidential impeachment rules, there were three steps leading to an impeachment inquiry: first, the speaker must decide whether the motion, prima facie, disclosed a case for impeachment.
If so, the speaker refers the motion to an independent panel, which would then determine whether “sufficient evidence” exists to show the president committed a serious violation of the constitution or the law, or a serious misconduct. The National Assembly would then decide whether to adopt this report and refer the president to an impeachment inquiry — the third step.
The sufficient evidence step was different to the prima facie step, argued Budlender. It was a “weightier” inquiry in which all information put before the panel was assessed to determine whether it constituted sufficient evidence to find potentially impeachable conduct. Where the report was criticised, MPs were entitled to take criticism into account and reject the report, he argued.
If there was evidence, which, if nothing more was said, would establish guilt, would that be sufficient evidence?
— Justice Owen Rogers
But counsel for the EFF, Kameel Premhid, argued that the reasons for the National Assembly’s rejection of the report were unlawful. He argued that a distinction made by the president and the ANC between “a prima facie case” and “sufficient evidence” was “semantic quibbling” because the panel had, in substance, relied on sufficient evidence to reach its conclusions.
However, Premhid faced tough questions from various members of the bench on this score. Justice Rammaka Mathopo said: “If the panel uses the words ‘prima facie’ and ‘sufficient evidence’ interchangeably, as if these were synonyms, that is wrong ... And if a wrong test has been applied, it would invariably lead to the wrong conclusion. So isn’t the case here [that] the report has to be impugned because it was based on the wrong test?”
Premhid answered that Mathopo’s suggested approach ran the risk of placing “form over substance”. He said the panel addressed this very question in its report and said their conclusions were “justified only when sufficient evidence exists”.
Tembeka Ngcukaitobi SC, counsel for the ANC, said “sufficient evidence” meant that the panel could accept the information put before it, but it had to discard that information that was not evidence. Either the panel misconstrued its mandate or the report was “illustrative of deep-seated confusion” by the panel, he said. Either way, MPs were entitled to reject the report.
But Ngcukaitobi also faced a grilling, with justice Owen Rogers asking him, in a lengthy back and forth, about what the difference was, in law, between the two tests. “If there was evidence, which, if nothing more was said, would establish guilt, would that be sufficient evidence?” asked Rogers. Ngcukatobi answered that it would. “Now, at least on my understanding of prima facie, it’s the same thing — evidence which if not answered will establish a charge.”
Ngcukaitobi said this was not how the impeachment rules were constructed and that the report was also not written as suggested by Rogers. It was dangerous for the court to “recast the report” or “rewrite it for them [the panel]”.
Anton Katz SC for the ATM party said the report was “perfect”. Any “suggestion that it is riddled with legal and factual difficulties is wrong”, he said. He argued it was incorrect to say, as the president did, that the panel “failed entirely to inquire into the question whether the president had acted in bad faith” — as the rules require. The report found bad faith could be inferred from conduct, he said. “When will a president come and say to a panel ‘yes, I acted in bad faith’? Never,” said Katz.
Judgment was reserved.
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