Some have criticised the Phala Phala report for either exceeding the panel’s mandate or being wrong in law, or both. This misses the point
BY PETER LEON
Former UK prime minister Harold Wilson’s aphorism that “a week is a long time in politics” could not seem more apt following the independent panel’s November 30 report on its preliminary inquiry into President Cyril Ramaphosa’s conduct under section 89 of the constitution.
The panel’s preliminary findings were that the president may have committed serious breaches of the constitution by, among other things, acting in a way inconsistent with his office and exposing himself to a conflict between his official and private responsibilities. It found that he appeared to have failed to comply with the statutory duty to report a theft of about $580,000, hidden in a sofa, from the sale of 20 buffalo to a Sudanese businessperson at his Phala Phala game farm, two weeks before the ANC’s five-yearly elective conference.
The report both roiled the markets and upended the political consensus. At the same time, the political and some of the legal commentariat have criticised the report for either exceeding the panel’s mandate or being wrong in law, or both. This misses the point. Following the EFF’s successful litigation in 2017 against the erstwhile National Assembly speaker over the attempted impeachment of then-president Jacob Zuma, parliament was obliged to make appropriate provision in its rules for the procedure to impeach the president under section 89 of the constitution.
It was pursuant to these rules that the independent panel, chaired by former chief justice Sandile Ngcobo, was appointed. As the Constitutional Court pointed out in the EFF case, as “the determination of (the impeachment process) falls within the exclusive jurisdiction of the assembly”… “there must be an institutional predetermination of what a serious violation of the constitution or the law is”.
Under the revised rules, an independent panel is appointed by the speaker on receiving a substantive motion proposing a section 89 inquiry for the impeachment of the president. The panel, in turn, is only required to make a preliminary inquiry into the matter and then make a recommendation to the assembly “whether sufficient evidence exists” that there are grounds for the president’s impeachment.
Importantly, the panel has no power to call witnesses, may not hold oral hearings and is limited to receiving relevant information received from assembly members and, the panel found, the president. While the panel is empowered to make a recommendation to the speaker that “sufficient evidence exists” to show that the president “committed a serious violation of the constitution or the law”, under the rules its recommendation is “not final and binding” on the assembly. Only if the assembly resolves to proceed with the inquiry is the matter referred to the impeachment committee for further investigation.
Unlike the panel, that committee can summon witnesses, take evidence under oath and compel the production of documents. Again unlike the panel, the impeachment committee is required to “establish the veracity and, where required, the seriousness of the charges” against the president. If the committee recommends that the president be removed from office, the question is then put to the assembly for a vote, which requires a two-thirds majority to be adopted.
In other words, the panel’s powers are purely preliminary and are no more than recommendations to the assembly. The inquiry proper is only undertaken once the assembly decides to establish an impeachment committee. As the panel correctly pointed out in its report, its inability to hear or summon witnesses “ineluctably leads to the conclusion that it was never intended that the panel should make a finding on whether the president is guilty of any of the acts listed in section 89(1)”.
In essence, the panel is required to decide whether, based on the information before it, the president has a case to answer. In determining what constituted “sufficient evidence” for the purposes of its inquiry, the panel decided that this required it to determine whether the information before it constituted a prima facie case against the president.
In examining the information — rather than evidence — before it, the panel pointed out that it generally lacked access to sworn statements by witnesses and was not privy to the SA Reserve Bank’s investigation into potential foreign currency violations. As to the latter, the panel found, prima facie, that there was “substantial doubt” whether the $580,000 stolen from the president’s game farm was, in fact, the proceeds of a sale given the absence of any evidence as to how the funds entered the country; the exact amount stolen; the lack of specificity about the purchaser; the fact that the funds were concealed in a sofa rather than banked for well over a month; and the fact that the theft was never reported to the police or registered as a crime while a private investigation was conducted by the head of the presidential protection unit.
As to the latter, the panel found, prima facie, that there was a “deliberate decision to keep the investigation” of the housebreaking and theft at the president’s farm secret (hence the absence of a police case number or docket), which involved the assistance of the Namibian authorities in apprehending the principal perpetrator of the theft. Notwithstanding this, no-one has been charged with, or convicted of, the housebreaking or theft. The panel accordingly found that there was a “deliberate decision” not to investigate the commission of the crimes committed at Phala Phala openly.
As the Constitutional Court reminded us in the EFF case, the president is “the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the constitution as the supreme law of the republic been expressly imposed … [The president] is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”
This op-ed was originally published in Business Day on 9 December 2022
Peter Leon is partner and Africa chair at Herbert Smith Freehills.
