Sunday Times E-Edition

Acid test for impeachment Franny Rabkin

The independent panel’s report may have no binding legal effect, but its political impact is enormous

By FRANNY RABKIN

● The report of the independent panel that found President Cyril Ramaphosa had a case to answer for impeachment this week may be a political missile. But in law, its significance is minimal.

The report makes no order and binds noone. Its role, in terms of the rules of parliament, is to assist MPs to decide whether to hold an impeachment inquiry — the process that has real legal significance. In the constitutional scheme, impeachment is a quintessentially political process: a mechanism the people’s elected representatives can use to remove the head of state for serious violations of the law, serious misconduct or incapacity.

Yet, if ANC MPs in parliament close ranks around their president and vote against an impeachment inquiry, Ramaphosa would have to live with a finding by two retired judges — one a former chief justice — and a senior counsel that he had a case to answer for “very serious” violations of the constitution and the law.

This could account for the president’s decision to challenge the panel’s report in court. Two independent sources confirmed the decision.

Judges — even highly respected ones like former chief justice Sandile Ngcobo — can get things wrong.

Different approaches

The rules for impeaching a president have never been used before and the task of an independent panel is different to that of a court.

The president and his legal team can also get things wrong. What is clear, now that Ramaphosa’s submissions to the panel have publicly emerged, is that he and the panel members had very different ideas about what the panel had to do and how it should treat the information before it.

First, Ramaphosa and the panel differed in their understanding of the scope of the inquiry and therefore about what evidence was relevant.

In his submissions, Ramaphosa said: “Some of the submissions made to the panel attempt to broaden the motion … accepted by the speaker and published by parliament. I understand the rules deal with what these submissions need to cover to address the motion as published [on] October 17 2022, accepted by the speaker and referred to this panel.”

Second, they differed on how the panel should treat hearsay evidence and evidence that was possibly unlawfully obtained.

Ramaphosa said he would address relevant allegations but added: “I would submit that I ought not to be asked to respond to information the sharing of which is prohibited by law, or that is unlawfully obtained.”

He said Arthur Fraser’s letter to the Hawks “is based purely on hearsay. Its contents do not demonstrate that he has personal knowledge of any of the matters of which he speaks [and] does not provide proof of his allegations.”

The panel took a different approach to the rule. In concluding that Ramaphosa had a case to answer, it said two issues formed “the foundation of the proposed charges”.

One was the source of the foreign currency that was stolen, the other was the instruction given by Ramaphosa to police general Wally Rhoode following the report of the housebreaking and theft.

“There are troubling, unsatisfactory features in the explanation of the source of the foreign currency given by the president,” said the report.

“On the president’s version, Mr Hazim walked into the farm on Christmas Day of 2019, carrying at least an amount of $580,000 in cash,” it said, referring to the Sudanese businessman who Ramaphosa says bought buffaloes from him.

“The purpose of this visit was to view animals. On this version, Mr Hazim came to the farm without any prior arrangement to come and view the animals. How did Mr Hazim know that there were buffaloes at the farm for sale? Was the sale advertised? There are further difficulties about the large amount of cash he was carrying. And if he came to the farm without prior arrangement, how did he know that the purchase price would be $580,000, unless he was carrying more than $580,000 in cash?” read the report.

It asked more questions about the receipt furnished by the lodge manager, Sylvester Ndlovu, and why Ndlovu would decide on his own to take the money out of a safe and store it under sofa cushions.

“The information presented by the president on the storage of money is vague and leaves unsettling gaps.

“On a probability, we do not think that Mr Ndlovu … would have defied the president’s instruction to keep the money on the farm and in the safe, as is normal business practice, and decide on his own to store the money inside the president’s private residence and in the sofa without the knowledge of the president … In all probability, the money was stored in the sofa with full knowledge and approval of the president,” said the report.

“We think that the president has a case to answer on the origin of the foreign currency that was stolen, as well as the underlying transaction for it.”

Found wanting

The report also said: “We are raising the issue of how the money entered this country because the ATM [African Transformation Movement] has raised this issue in its motion.”

However, while many would agree that getting to the bottom of the source of the money is at the heart of the Phala Phala scandal, the original impeachment motion tabled on October 17 does not raise the issue at all.

The allegation that there was something fishy about the transaction came later by way of supplementary evidence when the ATM referred to a letter from the Reserve Bank to Floyd Shivambu of the EFF to the effect that the Bank had asked the president’s lawyers where the money came from.

The ATM said the letter was relevant because, since the Bank inquiry was directed to the president, it was further evidence that Ramaphosa was engaging in paid work — in breach of the constitution.

It also showed Ramaphosa had violated exchange control laws and evaded taxes because it revealed that the Bank had never been told about the money, said the ATM.

The panel, on its own reasoning, had no need to consider this evidence to determine whether Ramaphosa engaged in paid work — the charge originally before it. It decided the question based on an interpretation of what is meant by “paid work” in the constitution and on Ramaphosa’s answers to questions.

In his submissions, Ramaphosa dealt with the sale of the buffaloes under a section entitled “factual background”. It was the president’s own submissions on the transaction that the panel found wanting.

‘Foundational’ issues

The panel’s approach was that “its inquiry is limited to the information placed before it by members of the National Assembly and the president’s response to this information”.

For this, the panel cited rule 129G (1)(c)(iv). However, that rule refers expressly to “relevant information” placed before it.

In an approach to court, Ramaphosa could argue that a line of inquiry considered “foundational” to the panel was never part of what he was called on to answer to in terms of the rules.

The differences in the approaches on hearsay and allegedly unlawfully obtained evidence are clear in the way the report treated what it describes as the second “foundational” issue: the instruction given by Ramaphosa to Rhoode.

The report said: “The gravamen of the complaint is that the president gave an unlawful instruction to Gen Rhoode, a member of the PPU [presidential protection unit], to investigate the housebreaking and theft on his farm, instead of reporting the matter to the SAPS.”

The PPU’s function “is not to investigate theft from the farm … of money belonging to the president’s private business”.

The panel in part relied on Ramaphosa’s own statements to make its findings on this score. It said Ramaphosa had publicly stated on a few occasions that he had reported the incident to Rhoode.

“These statements, prima facie, show that the president reported the theft of money to Gen Rhoode because he wanted Rhoode to investigate the crime.”

The Namibian connection

The panel rejected the assertion by the president in his submissions that he had, at first, only reported the breach of security at the farm to Rhoode, and then, some time later, the theft.

It also cited the fact that there was no police case number.

“Prima facie” the information before the panel showed that “the general was not given instructions to report the matter to any police station and that this is why no case was registered … and no docket opened. The investigation was deliberately conducted outside of the normal procedures for investigating crime,” said the report.

But one of the factors that seems to have tipped the scales — as far as impeachable conduct is concerned — is the allegation that the police asked the Namibian police to handle the matter “with discretion” and that Ramaphosa had sought the assistance of the president of Namibia, Hage Geingob, in apprehending the suspected mastermind of the burglary.

This aspect of the report’s findings is important because — if true — it would directly and personally link Ramaphosa to the investigation that the motion claims was unlawful.

The Namibia allegations are contained in two statements by Fraser — one a “sworn statement dated June 1” and another made to the public protector on September 26, which attaches a report from Namibian police crime intelligence saying “discussions are allegedly going on between the countries’ two presidents”.

The claim provoked an angry response from Geingob. But, said the report, Geingob “significantly … does not deny that President Ramaphosa sought assistance in apprehending the concerned suspect”.

Preliminary inquiry

Ramaphosa did not deal with this specific allegation in his submissions. But in response to the charge of instructing an unlawful investigation, he said he gave no unlawful instruction to Rhoode.

“Furthermore, I did not ‘hunt’ for the perpetrators of the theft, as alleged, nor did I give any instruction for this to take place.” Rhoode was also “adamant” that a trip he made to Namibia had nothing to do with the Phala Phala burglary, said the report.

The president provided two sworn statements from people with personal knowledge and seemingly thought this should be enough to put paid to claims made by someone who had no personal knowledge and relied on an intelligence report of unclear provenance.

But the panel said: “We are mindful of the dangers of relying on hearsay and the caution to be applied in approaching such evidence. However, we are only concerned here with a preliminary inquiry and not the inquiry itself.”

It said the proper approach was “for us to be satisfied that there is some other independent information which tends to support the hearsay evidence complained of”.

The panel concluded: “Based on all the information … We think that the evidence … prima facie establishes that the president thrust himself into a situation where there was a conflict of interest between his official responsibilities as the head of state and as a businessperson involved in cattle and game farming.”

It may well be that a court would agree that a rigid approach to hearsay evidence is inappropriate for a preliminary inquiry of this nature — the panel is not a court, after all.

I did not ‘hunt’ for the perpetrators of the theft, as alleged, nor did I give any instruction for this to take place. President Cyril Ramaphosa

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2022-12-04T08:00:00.0000000Z

2022-12-04T08:00:00.0000000Z

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