On Tuesday, MPs voted against adopting a Section 89 report, which means President Cyril Ramaphosa will not face an impeachment vote. During proceedings on Tuesday, ANC MP and minister of justice and correctional services Ronald Lamola told parliamentarians that voting against the report is not voting against accountability. Here is his speech.
We are here to debate the contents of the panel's report and not to assassinate the personal characters of the individuals who have compiled the report.
The President exercised his right to take the report on review.
The opposition parties who are criticising the President for taking the matter on review are hypocrites. They go to court regularly on regular basis.
What is accountability?
The opposition parties want us to believe that accountability means accepting this report without scrutinising it.
This debate in and of itself is a fundamental pillar of accountability. As parliamentarians, we are required to explain our decisions. That is what accountability entails. How will we justify the decision to accept this report with its legal flaws?
Voting against this report is not voting against accountability.
Lack of evidence
For us to move into the second phase, we cannot move into that phase without a firm foundation.
This panel is not island, it is extension of Parliament. This panel derives its authority from the rules of Parliament. Let us not be uncited by the fact that this report is produced by an independent panel. If adopted, it effectively becomes a report of Parliament.
So, both the procedure and the substantive grounds for a Presidential impeachment should not be held hostage to partisan conflict. On the contrary, examining this report, on the ground's rationality, and legal reason, we ultimately exercise fulfilling our constitutional obligations.
In this instance, accountability applies to Parliament as much as it would apply to the subject of this report the President. In Economic Freedom Fighters and Others v Speaker of the National Assembly and Another  ZACC:
The question before this house is whether we are convinced that the panel has established that there is sufficient evidence to establish that the President has a case to answer in terms of the rule 129G(1)(b) to commence a section 89 impeachment inquiry.
I will show why as the ANC we believe the panel has not been able to establish that there is sufficient evidence to commence an impeachment inquiry.
The panel, by its own admission, in paragraph 80, states that it "believes it has not been given all the information that is presently available on the Phala Phala issue."
The panel further admits that eight state institutions are yet to conclude their investigations, including the Office of the Public Protector, which is mandated in terms of Section 3(1) of the Members Ethics Act.
The Section 89 Panel Report conflates sufficient evidence with prima facie evidence.
The admission of untested hearsay evidence by the panel without laying a proper basis for doing so is fatal to the reliability of the panel’s report.
It is against this background that the ANC does not support the adoption of the panel's report.
Wrong legal test
The panel in paragraph 72 compares itself with the panel established for a preliminary enquiry to proceed with the parliamentary removal inquiry of the Public Protector.
This is what the Section 89 Panel says: "The powers and functions of these two panels are substantially the same save for one noticeable difference in the wording of the Terms of Reference.
The Terms of Reference for the removal of the Public Protectors require the panel to "conduct and finalise a preliminary assessment relating to the Motion proposing a section 194 enquiry to determine whether there is prima facie evidence to show that the holder of a public office" is guilty of any of the grounds listed in section 194 of the Constitution.
By contrast, this panel is required to 'make a recommendation whether sufficient evidence exists to show that the President committed one of the grounds for removal from office'".
Three paragraphs later, the panel tell us that what they have identified as a noticeable difference is not a difference. In paragraphs 75 and 76, the panel states that:
Madam Speaker, sufficient evidence is a higher threshold test than prima facie.
By adopting the incorrect standard, the panel applied the wrong legal test. The effect of this conflation amounts to an unjustified and unlawful revision of the terms of reference.
In a nutshell, the panel has lowered the bar too low for proceedings to impeach a sitting President to commence and that will set a very dangerous precedent for our constitutional democracy.
This is a fatal error in the panel’s report as it is the basis of their report. In both facts and the law, the panel’s report cannot stand.
The panel also conflates information and evidence.
The panel rejected information, not because it was insufficient. But rather on the basis that it is not relevant information.
In fact, there is no finding on the sufficiency of information. Instead, the panel misdirected itself in paragraph 74 by misinterpreting the provisions of Rule 129G(1)(c)(iv) when it says:
"In the context, 'evidence' must be construed to mean information referred to in the Rules."
Evidence and information in law are two different things.
Information is knowledge obtained from investigation, study, or instruction.
Evidence is what is legally submitted to a tribunal to ascertain the truth of a matter, and it must have passed the admissibility test.
Furthermore, there is no analysis in the report which shows how the information which was provided to the panel was converted into evidence.
The misinterpretation of Rule 129 and reference of information as evidence taints and discredits the entire report.
Firstly, on the burden of proof, the panel decided to evaluate which version is more probable, instead of evaluating whether there is sufficient evidence for a committee to be constituted as per section 89 of the Constitution.
The panel effectively reversed the onus of proof and put the President in a position where he must disprove a version placed before the panel.
What happened to the fundamental principle of justice, namely that those who allege must also prove?
By doing this, the panel acted outside of its mandate.
Secondly, on hearsay evidence and media reports, the panel did not justify the use of hearsay evidence without the panel itself warning us about hearsay evidence.
In paragraph 84: the panel tell us that: "we are mindful of the dangers of relying on hearsay evidence and the caution to be applied in approaching such evidence."
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The panel failed to lay a proper basis for admitting hearsay evidence.
The paradox played itself out in relation to information which relates to Mustafa Hazim:
In terms of the rule 129 G, the panel indeed could not summon or subpoena witnesses, but surely this does not mean that the panel should ignore information which was already in the public domain.
This should have been an important consideration assessing whether the information before the panel was credible or relevant or even selective.
We now have evidence that the information that was placed before the panel was irrelevant but most importantly selective, speculative or simply inaccurate.
At paragraph 107 of the panel’s report the panel says:
“Mr. Hazim is said to be a Sudanese businessman. Yet no particulars are given of his business or the business he is involved in, the address where he conducts business from, or any particulars that will enable anyone wishing to identify him or establish his whereabouts. It is therefore not surprising that a journalist with News24, Mr. Kyle Cowan, reported that “[d]espite extensive searches, utilising various databases and online tools, News24 was not able to immediately verify [Mr.] Hazim's identity.”
How does the panel reach this conclusion?
It reaches this conclusion based on a News24 article submitted by the ATM dated 6 September 2022, the article refers to a mysterious Sudanese businessman.
What should we make of this conclusion considering that literally two days later, another article was published by the same Mr Kyle Cowan reporting that,“ Hazim Mustafa, the owner of Sudanese football club Al Merrikh SC, was identified as the mystery buyer of some Phala Phala buffalo.”
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This is the same information which Sky News confirmed a week ago.
We can only reach two conclusions from this: either the information that was placed before the panel was inadequate, or alternatively, in assessing the information before it, the panel simply ignored information that was already in the public domain.
Just by scratching the surface, Sky News tracked down the so-called mysterious businessman. He told Sky News that he had paid in cash for the buffaloes from funds that he had declared when he entered the country. He further says he had not taken delivery of the buffaloes because of the Covid lockdown.
In the report, Mr Hazim says he had no idea he was buying buffaloes from South Africa's president, as he dealt only with a broker — stand-in farm manager, Sylvester Ndlovu.
Bear in mind that the panel doubted if such a purchase happened or doubted even the existence of Hazim.
Surely if this house is objective, it will not ignore the fact that Mr Hazim's existence was confirmed by News24 on their article dated 08 September 2022, before the panel released its report and post the release of the report by Sky News.
Quite evidently, therefore, this is further proof that the panel erred in making the findings that it did, even on the basis of its own mistaken, lessor threshold test of ‘prima facie evidence’.
This version of events must present a turning point for this house.
There are two other important flaws in the panel’s report:
- Public Protector Investigations
In terms of section 3(1) of the Members Ethics Act, the issue of whether the President was involved in paid work falls within the ambit of this Act, and any transgressions are investigated by the Public Protector. The panel does not tell us why it proceeded to investigate this matter while the Public Protector is currently doing the same as mandated by law.
If the panel had a justifiable reason, it should have told us. The panel could have referred its investigation to the Public Protector or awaited the conclusion of the Public Protector investigation in this regard.
The esteemed panel concludes that this was a violation done in bad faith, on its interpretation of section 96 (1) of the Constitution. It sheds no light on how this should be stacked up against the fact that there is standing declaration by President with the secretary of cabinet and certainly provides no reasonable basis for concluding that this constitutes sufficient evidence of a serious violation of the law. Have the above suggestions been made before?
If the panel was indeed hindered by rules to conclude and verify the information, the panel had many options to follow. One, the panel could have requested an amendment to the rules like the Zondo Commission did on many occasions.
Two, the panel could have requested an extension of the time period to finalise its report which it only did once. The Zondo Commission requested extensions till we got tired, but they were granted as it was in the interest of justice.
A delayed report, with impeccable credentials and reasoning is far better than an on-time report that is seriously flawed and will undermine the system of constitutional accountability.
- Incorrect interpretation of Section 34(1) of the Prevention of Corrupt Activities Act
The way the panel interpreted section 34 PRECCA is confusing at best and unclear at worst.
Section 34(1) says any person who holds a position of authority and who knows or ought to have known or suspected that another person has committed:
(b) the offence of theft, fraud or extortion, forgery …involving an amount of R 100 000, must report such knowledge or suspicion or cause it such knowledge or suspicion to be reported.
It is known to all of us that this matter was reported to the General responsible for the Presidential Protection Services.
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Why is this not deemed as causing the matter to be reported by the panel?
The panel does not show how from the information before it, the President reporting the matter to the General constitutes an instruction to conduct a personally undertaken investigation. If indeed this is a violation, was it done in bad faith? We are none the wiser after reading the report.
Certainly, again, it cannot meet the test of sufficient evidence of serious violation of the law.
The report does not guide us, instead, it fuels more speculation, encouraging instability and uncertainty in our democratic system.
Report is flawed
In conclusion, Madam Speaker, Honourable Members, we cannot accept this report, its flaws are patent, material and clear for all to see. There is no sufficient information for us to appoint the section 89 Committee to impeach a President. The report of the panels has a lot of glaring errors, and there is an overwhelming consensus by legal scholars, practitioners and society in general that there are material errors of law in the report that cannot be justified.
The body of the report does not justify the findings and recommendations.
If anything, we should be weary of those among us who mine for dirty data in an unprincipled and illegal way.
None of us should cave into this form of intimidation more so especially when it has the effect of undermining the very Constitution we have taken an oath to serve and protect.
Parliament should not fall into the trap of promoting illegality by admitting illegally obtained evidence under the shallow guise of holding a President accountable.
The opposition will be crying foul today, but if it was the state using illegally obtained evidence to process anyone, they would protest and cry more.
Opposition parties have laid bare their theatrics with which they seek to circumvent due processes.
The opposition narrative that President Ramaphosa has been found guilty needs to be rebuked in the strongest possible terms.
As the ANC, we believe that the contents of the report do not justify the conclusion that the President has a case to answer, and so this motion should fall.
- Ronald Lamola is Minister Justice and Correctional Services.
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