Picture: Phando Jikelo/African News Agency (ANA) – Retired Chief Justice Sandile Ngcobo presents the Section 89 report to The Speaker of Parliament Ms Nosiviwe Mapisa-Nqakula at Imbizo Media Centre in Parliament on November 30, 2022.
By Bheki Mngomezulu
The money that was stolen from President Cyril Ramaphosa’s Phala Phala farm in Limpopo has landed him in hot soup in what has been dubbed the “farm gate saga”. In December 2019, the lodge manager, Mr. Ndlovu stashed a large sum of US dollars in a sofa at the President’s private residence. When the money was subsequently stolen, no case was opened. Thus, no formal investigation was carried out and no one was charged.
The decision by Arthur Fraser [former spy boss] to spill the beans and to lay a complaint against Ramaphosa triggered the African Transformation Movement (ATM), one of the fourteen political parties represented in the National Assembly to invoke Section 89 of the Constitution. This was done with the view to activate the impeachment process against the President. Eventually, the Speaker of the National Assembly acceded to the request.
A previous ruling had been made by the Constitutional Court regarding Section 89. In its judgement, the court ruled that everything should be done to ensure that there is a prima facie case against the sitting president before Section 89 is invoked. In compliance with this ruling, the Speaker invited political parties to submit the names of potential candidates.
After deliberations and assessing the credentials of all the nominees, three high profile judges were appointed. These were retired Chief Justice Sandile Ngcobo who was appointed as the chairperson of the panel, Judge Thokozile Masipa and Adv. Mahlape Sello.
The panel assumed its duty immediately under a very strict timeline. This was necessitated by the urgency of the matter and the fact that the Phala Phala saga has generated national interest. In carrying out its work, the panel invited Ramaphosa to present his side of the story by addressing specific issues, which he did.
Within a period of 45 days (after one short extension), on November 21, the panel handed its report to the Speaker of the National Assembly, Nosiviwe Maphisa-Nqakula. Later, on the same day, the Speaker made the report public and shared copies with the various political parties represented in parliament. Ordinary members of the public too had access to the report.
Since then, there have been mixed reactions to the report. On the one hand, there are those who welcomed it and applauded Justice Ngcobo and his team for doing a sterling job. They are impressed that the panel produced a detailed report within a short space of time, whereas state institutions like the National Prosecuting Authority and the Public Protector failed to do so despite having plenty of time and resources.
Conversely, some people have either drilled holes in the report or simply dismissed it in its entirety. It is true that no document (big or small) is perfect. However, dismissing the entire report raises a lot of questions about the integrity of those who do so. For example, do they dismiss the report because they genuinely believe it is flowed or is their decision informed by their allegiance to the President? Is it true that the entire report is factually incorrect and legally questionable? To what extent can the notion that the report is based on allegations be sustained?
Let me focus on the last question. As mentioned earlier, Ramaphosa was afforded the opportunity to present his side of the story. In his 138-page response, Ramaphosa did not deny that there was burglary in his Phala Phala farm. He also did not deny the fact that a large sum of money in US dollars was stolen from his farm. The only thing he disputed was the amount that was quoted by Fraser.
Flowing from this factual information, the “allegation” narrative cannot be sustained. There could be certain points that are subject to debate. But to dismiss Fraser’s claim entirely as an “allegation” would be disingenuous at best and reckless at best.
In terms of the Parliamentary process, once the Speaker had received the report and shared it with Members of Parliament, the next step was for Parliament to deliberate on the report and then pass a resolution on whether to accept or reject it.
Two developments have raised questions about the integrity of our politicians. The first one was the decision by the ANC to totally reject the Section 89 report. The National Working Committee sat and deliberated on the report. It forwarded its recommendation to the ANC’s National Executive Committee. In its special meeting, the NEC took a decision not to accept the report and to instruct its MPs to do the same.
What was not immediately clear was whether this rejection was indeed genuine or if it was informed by the resolve to show support for Ramaphosa. For example, if there were certain sections or paragraphs in the report which the ANC either did not agree with or needed further clarity on, would it not have been better to raise issues about those sections/paragraphs only than to reject the entire report? It is true that like all other political parties, the ANC has to exercise its right. But such right cannot be exercised in a subjective manner and without thinking about the future of this country.
The second development which caught the eye following the release of the report was the President’s decision to take the report on constitutional review by the Constitutional Court. Intriguingly, the President did not ask the court to consider this matter on an urgent basis. The question is: why? Did Ramaphosa want to buy time until the elective conference of the ANC is concluded? Did he want to stall the parliamentary process under the guise that the matter was still sub judicare? Did the President simply exercise his right? These are some of the most pertinent questions.
In all fairness, in principle, the President is allowed to exercise his right like any other South African. But, was this decision really warranted? My answer is an emphatic no! The decision was not based on rationality and/or common logic. It was simply a defence mechanism which did not have the interest of the country. There are several reasons for this claim.
Firstly, the panel report is neither binding nor final. Secondly, it is not a court judgement. Thirdly, even if parliament adopted the report, such a decision would not mean the immediate removal of the President. The Section 89 Committee would still have to process the resolution. The matter would also be debated in parliament. After such a debate, voting would take place. For the motion to pass, it would have to get a two-thirds majority.
By all accounts, such a process would not be concluded before the ANC’s elective conference scheduled for 16-20 December 2022. Given this context, it is hard to understand why the President deemed it necessary to take the Section 89 report on review.
From a broader perspective, there is something concerning in the manner in which various people have been reacting to the panel report and to the President’s decision. When Former President Jacob Zuma took a similar decision to approach higher courts in his bid to have the initial judgement set aside, he was accused of employing delaying tactics. The same accusation was also unsurprisingly levelled against the suspended Public Protector, Adv. Busisiwe Mkhwebane.
Ironically, as Ramaphosa challenges a decision that is not binding, there is general sympathy with him. Some members of the Tshiaelo branch of the ANC put it bluntly that they would put their bodies on the line to defend Ramaphosa.
The most bizarre comment made by a member of the public on television was that Ramaphosa is a human being, he made a mistake and should therefore be pardoned. Such an argument was misplaced. Thabo Mbeki and Jacob Zuma were human beings too. Why were they not pardoned? Arguments like this are not helpful at all. They are devoid of any logic and context. They demonstrate subjectivity and blatant inconsistency.
In essence, at the moment, the Phala Phala incident is a parliamentary issue, not a legal matter. This is because thus far Ramaphosa has not been formally charged. Having been part of the team that drafted our Constitution, and being a lawyer himself, Ramaphosa is supposed to know better. The only conclusion one can draw is that he is not taking the route he has chosen out of ignorance. On the contrary, the President is just playing a political game. Sadly, he has attracted cheerleaders. Some have no clue of what is happening with regards to this matter. They simply support Ramaphosa blindly. Others have sound legal knowledge but are blinded by subjectivity.
Therefore, having been crafted with good intentions, the Section 89 panel report has unwittingly polarised the nation. Some espouse views out of ignorance while others do so deliberately with ill intentions. Sadly, the reputation of the three legal minds who crafted the report is being unfairly tarnished for political expediency. The impeccable record of former Chief Justice Ngcobo is being unfairly damaged. Does this action epitomise patriotism?
Bheki Mngomezulu is Professor of Political Science and Deputy Dean of Research at the University of the Western Cape