Ramaphosa to challenge section 89 report in ConCourt, says lawyer

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President Cyril Ramaphosa. (Photo: GCIS)
President Cyril Ramaphosa. (Photo: GCIS)
  • An independent panel found that Cyril Ramaphosa had a case to answer in relation to the Phala Phala break-in.
  • The report paved the way for the president to face an impeachment inquiry over allegations of serious misconduct and the flouting of anti-corruption laws.
  • Ramaphosa's attorney has confirmed that he will seek to review the report in the Constitutional Court.

President Cyril Ramaphosa's lawyer has confirmed that he will seek to challenge, in the Constitutional Court, the section 89 panel report which disbelieved his account of the Phala Phala break-in.

In response to questions from News24 in relation to that application, Ramaphosa's attorney, Peter Harris, issued a brief statement on Sunday: "We received instructions some days ago from the president to take the panel's report and recommendations contained therein on review to the Constitutional Court. Papers will be filed shortly."

Harris did not confirm when Ramaphosa's review application would be filed, but it might have a material impact on Parliament's planned Tuesday vote on whether the president should face an impeachment inquiry over the multiple "prima facie" suspicions raised by the section 89 panel.

The panel, headed by former chief justice Sandile Ngcobo, was wholly unconvinced by Ramaphosa's account of the theft of some US$580 000 from a couch in a room on his Phala Phala farm in February 2020 – and did not accept his claims that the money had been the proceeds of a buffalo sale.

READ | Legal body rubbishes claims against Phala Phala panelist, says advocates are ‘independent’

Among other things, the panel found that the information presented to it established, "prima facie, the money that was stolen was probably more than US$ 580 000, and that there was "a substantial doubt about the legitimacy of the source of the currency that was stolen".

"This is a very serious matter, which, if established, renders violation of section 96 of the Constitution and [the Prevention and Combatting of Corrupt Activities Act], a serious violation, and a serious misconduct," it said.

In other words, the panel has effectively suggested that the US$580 000 stolen from Phala Phala may be the proceeds of crime – a preliminary finding that fundamentally contradicts Ramaphosa's continued assertions that he did nothing wrong.

It remains unclear, at this point, on what grounds the president will justify making a direct application to the Constitutional Court.

But his decision to approach the apex court, which has previously heard direct access applications in relation to a motion of no confidence vote against former president Jacob Zuma, effectively bypasses the increasingly controversial Western Cape High Court.

Harris has not detailed the basis upon which Ramaphosa will challenge the panel report, which has come under fire from legal commentators over recent days for going beyond the charges it was initially asked to investigate.

READ | Helter skelter: Inside Ramaphosa's resignation - and his decision to hold on

Sfiso Benard Nxumalo, a public law DPhil in Law Candidate at the University of Oxford, says the report is "vague" in relation to "which constitutional provisions and laws" were potentially "seriously violated" by Ramaphosa in relation to the Phala Phala break-in and the alleged cover-up that followed it.

"In other words, which violations were of such a serious nature that they would justify a case of impeachment?"

Serious misconduct is defined in the National Assembly Rules as "unlawful, dishonest or improper behaviour performed by the president in bad faith".

"In the same rules, a serious violation of the Constitution or the law is defined as 'behaviour by the president amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith'.

"This illustrates that not every violation or conduct that is contrary to the Constitution is serious enough to warrant an impeachment and removal of a sitting president from office. There must be more to trigger those processes.

"The panel, rightly, states that the allegations against President Ramaphosa and his alleged conduct are serious. I doubt that anyone could seriously decry such a finding. The question is whether the president acted in bad faith and maliciously with the requisite intention?

"The panel does not tell us that. It does not tell us whether the president had the requisite intention to violate the Constitution or the law or commit misconduct. What it does tell us, however, is that bad faith can be inferred in light of the circumstances. This is simply not enough."

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