Cyril Ramaphosa's farm, Palapara. (Leon Sadiki)
In one of the many ironies of politics, the Constitutional Court has agreed to hear an application by the Economic Freedom Fighters (EFF) for President Cyril Ramaphosa to face impeachment over the Parapara scandal, just days after the EFF declared it was open to coalition talks with the ANC.
In an order issued on Monday, the Supreme Court asked the EFF and the defendants – the president, speaker, National Assembly and all political parties represented in National Assembly – to file their written arguments by July 19 and July 26 respectively.
The case will see a review of a report which ostensibly alleges serious wrongdoing regarding the source of foreign currency stolen from President Ramaphosa's game farms and his clandestine attempts to recover it.
President Ramaphosa said the money stolen – $580,000 paid by a Sudanese buyer as a deposit for the buffalo – was hidden in a sofa by an employee.
The report, by a committee chaired by former Chief Justice Sandile Ngcobo, appeared to bring him to the brink of resigning, and he decided to ask the Constitutional Court to review the report, alleging that the committee had misinterpreted its mandate and unfairly relied on hearsay from former intelligence chief Arthur Fraser.
He argued in his application that the commission cannot hold him liable for reversal to rebut Mr Fraser's claims, including the allegation that the money was donations from African and Middle Eastern countries smuggled into South Africa by former President Ramaphosa's special adviser, Bejani Chauke.
“Absence of evidence is not evidence of absence of evidence. The committee's approach boils down to what I have not answered being prima facie true,” the president argued.
The Commission had confused the meaning of “prima facie evidence” with “sufficient evidence,” with the latter being the stricter and more correct standard.
The ANC majority in the National Assembly voted overwhelmingly to reject the findings of the Ngcobo Commission and then, when the Supreme Court denied the President direct access, he allowed the matter to sit rather than appeal to the High Court.
In its founding affidavit filed in mid-February, the EFF argued that Parliament's rejection of the report was unreasonable because the facts and parliamentary rules left no room for leeway for President Ramaphosa.
Avoiding an impeachment investigation violates Article 11 of the Constitution, specifically the duty of Congress to hold the executive branch accountable.
The EFF is seeking substitution as an exceptional remedy, or alternatively, for the court to send the report back to the council for a new vote.
EFF leader Julius Malema said in his founding affidavit that there was no real risk of being held accountable and therefore no reason for Ramaphosa to cooperate with the commission because the ANC would “misuse its majority to protect Mr Ramaphosa”.
He added that it was a sign indeed when ANC chairman Gwede Mantashe warned party members that those who did not abide by the three-line code would face expulsion.
“Such comments, contrary to the very oath that all members take, demonstrate a worrying willingness by the majority party to use its numerical strength to politically exonerate and protect its leader, despite the legal strength of the case the president must answer.”
Malema went on to say this was another example of Parliament failing to fulfil its constitutional duties, joining the examples cited by Chief Justice Raymond Zondo in his report into state takeover.
While President Ramaphosa challenges the interpretation of the commission's mandate to recommend impeachment based on prima facie evidence, President Malema takes this to be the correct position and argues that while the commission's findings are not binding, its mandate is broad and defines the powers of parliament when considering its findings. Therefore, he can only reject a report if he believes the commission's view that there is prima facie evidence is wrong.
“Properly interpreted, Parliament could only reject the report if there was no ostensible prejudice against the President.”
Instead, he said, the council had brought up “irrelevant issues to justify the vote.”
Malema argued that the rules needed to be amended as they were vulnerable to such abuse.
As things stand, it is unlikely that any case against a sitting president would make it to an impeachment committee because majorities in Congress would invent reasons to reject impeachment and use “party discipline” to force party members to vote accordingly.
“Executives will never be held accountable, even in situations where the evidence suggests otherwise.”
The EFF proposed that the report be left to the Speaker to consider, who would do so on the narrow criteria of whether the committee found any prima facie evidence against the president. If so, the Speaker must refer the matter to the Impeachment Committee. If not, the Speaker need only inform Parliament accordingly.
The Ngcobo Commission found superficial evidence on each of the four charges raised in the misconduct complaint.
The first is that President Ramaphosa was carrying out paid work outside the scope of his official duties.
The EFF said the commission was correct in concluding that the prohibition in section 96(2) of the Constitution was absolute and it did not matter whether his hunting farm was profitable.
President Ramaphosa himself explained the source of the stolen money, saying he had “discussed with the farm manager the culling of substandard buffaloes” and revealed his involvement in the farm's operations.
Similarly, Malema argued that based on common argument, the commission concluded that President Ramaphosa also had a case to answer to a second charge of breaching section 34 of the Prevention and Eradication of Corruption Act, which requires persons in positions of authority to report thefts exceeding R100,000 to the police.
President Ramaphosa reported the incident to the then head of the security force, Wally Lord, who launched an investigation but never reported the theft to the police station and no investigation file was opened.
With regard to the third and fourth counts, the Commission found that the President's conduct may have been inconsistent with his official duties and created a conflict between his official and private affairs.
The EFF said President Ramaphosa should have known he was abusing his power by asking President Lord to investigate the thefts and asking the Namibian president for help in arresting the suspects.
“The president may or may not be able to defend himself against the charges,” Malema argued.
“But until the impeachment committee has thoroughly adjudicated its fact-finding proceedings, which it has concluded after giving the president an opportunity to present his defense, the inference that the president is guilty is inescapable.”
President Ramaphosa's response dismissed the EFF's complaint as “without merit” and argued that it did not fall within the Supreme Court's exclusive jurisdiction.
The EFF's argument that Parliament had failed to meet its constitutional obligations was a Trojan horse to gain direct access under section 167(4)(e) of the Constitution, his lawyer Peter Harris wrote.
However, the suit must fail because it has not established its claim that Congress failed to discharge its specific duties.
It was best to challenge the reasonableness of the decision that Parliament took after complying with its duty under Article 89 of the Constitution to appoint a committee to consider complaints of misconduct against the President. But the mere fact that the EFF did not like the outcome does not mean that Parliament failed in its constitutional duty.
Harris also recalled that the president was denied direct access when he sought to challenge the Ngcobo report.
The EFF ran into difficulties from the start as it sought to circumvent the rules adopted by Parliament to implement its Article 89 obligation to hold the President to account and directly challenge it in constitutional terms.
This, he said, was the reason for the company's attack on Section 89 rules.
But there is a fundamental problem with this: Article 89 does not compel Parliament to impeach the president, even if one or more grounds for impeachment are established.
“If the Constitution itself gives discretion to remove the president by adopting a resolution, it necessarily gives the power to members of the National Assembly to vote on the matter,” he said.
“In voting, all options are open to members: a yes vote in support of measures to remove the president from office, a no vote against such measures, and an abstention – all are equally valid.”
Therefore, none of it can be argued to be irrational, Harris stressed.
As for the EFF's complaint that the result of the vote was politically influenced, he said that was naive – all parties represented in Parliament, not just the ANC, were politically influenced.
“It is self-evident that such controversial decisions taken by Parliament are always politically charged.”
Harris said the glaring flaws in the EFF's application explain why he went back to the essence of the commission's findings and sought to have the Supreme Court approve them.
But even if those findings were beyond reproach – something President Ramaphosa disputes – it would not help the EFF as the National Assembly still has wide discretion to approve or reject the report.
Legislators exercised power on behalf of the people who elected them, and when they went astray and acted in a way that was not in keeping with the will of the voters, the remedy was for the voters to punish them.
“That is not a matter for the court to deal with.”
Ms Harris reiterated the committee's report, saying it was fundamentally flawed.
Rule 89 makes it clear that the President can only be removed where there has been malicious, deliberate or malicious conduct, and rule 129G(1)(b) provides that the Commission must be satisfied that there is “sufficient” evidence of such a breach of law.
The committee's work was limited to considering “clearly formulated substantive allegations” put forward in a notice of motion, with the minimum requirement that the allegations must be accompanied by a prima facie showing of evidence or they would not get beyond the initiation stage.
But that shouldn't be confused with the committee's work to find enough evidence to justify impeachment proceedings. “We need more than prima facie evidence,” Harris said.
At the beginning of its report, the committee reviewed its mandate and began by interpreting rules that have been in place since 2018 but have never been applied before. The committee concluded that in the context of its work, sufficient evidence means whether there is a case for the president to answer.
“In other words, we interpret this language to require the Commission to determine whether there is a basis for a prima facie case against the President.”
The commission stressed that its limited mandate did not allow it to verify the information and therefore it could only read Mr Fraser's allegations alongside Mr Ramaphosa's submissions, which it said were “vague and filled with disturbing gaps”.
Harris said the committee got it wrong.
While the existence of prima facie evidence was a requirement for formulating charges against the president, the commission required more.
“The independent committee will not simply repeat the same tests.”
This misunderstanding caused the investigation to end without reaching the point of whether he acted in bad faith, and without such an assessment, sufficient evidence could not be arrived at to justify impeachment proceedings.
“There is no evidence that he acted in any manner with malice. The misconduct with which he is accused in the EFF's application falls short of constituting serious misconduct as required by section 89(1).”
If the EFF wins and the report is sent back to Parliament for review, President Ramaphosa will find himself in a tougher position than he was 18 months ago, after the party's vote share in last week's general election fell to 40 percent, meaning it will lose 70 seats in Parliament.
