The risk of a conflict of interests in President Ramaphosa’s conduct in the Phala Phala issue is apparent, but whether bad faith and seriousness are also present may prove to be challenging legal questions. It is upon these questions that the Constitutional Court is asked to review the findings made and to set them aside as unlawful findings pointing toward a full blown impeachment hearing. But a criminal offence is created by Section 34. If a theft involving more than R100,000 is committed “any person who holds a position of authority who knows of the theft …must report such knowledge to the Hawks”. He was accordingly obliged to report or to cause the theft to be reported to the Hawks but no such report was made. The president elected to throw a blanket of secrecy over the matter instead of reporting it to anyone other than General Rhoode. As the president decided to hush up the burglary, he can hardly say he acted in good faith in not reporting it. It will be interesting to see what the Constitutional Court decides. – Sandra Laurence
The Phala Phala burglary – what we know now
By Paul Hoffman*
As the dust settles around the ANC decision to stand by their presidential man by protecting him against impeachment, and while the review of the adverse findings of the Section 89 Panel is pending in the Constitutional Court, it is as well to ask what we know now in relation to the issues created by the criminal complaint laid by Arthur Fraser against Cyril Ramaphosa at the Rosebank Police Station back in June 2022. It was expanded into the complaint to parliament by the two-man ATM party, which appears to be closely aligned to the RET faction of the ANC.
There was a burglary at the farm Phala Phala on 9 February 2020. The burglars stole at least US $ 580,000. The burglary and theft were kept secret by Ramaphosa and no police docket was opened. He used his good relations with the Namibian government to enlist its assistance in recovering the stolen foreign currency from Namibian suspects in Namibia, having initially asked the head of the Presidential Protection Unit, General Wally Rhoode, to attend to the matters arising from the burglary.
Ramaphosa admits that he trades in cattle and wildlife from the farm Phala Phala in the Bela Bela district using his sole membership of a close corporation to do so. He has done so openly and declaredly since he joined the national executive and sees nothing wrong with it. So much so that he is president of the Ankola cattle breeders association. Hard to show “bad faith” in these circumstances. His detractors perceive his farming to be in breach of the prohibition on undertaking “any other paid work” which burdens cabinet members and deputy ministers. Ramaphosa points out that he is not paid and that others work for the close corporation, not him. As the panel points out, it is a matter of interpretation of Section 96(2)(a) of the Constitution which creates the ban on “any other paid work”. The panel construes the phrase as wide enough to put Ramaphosa on his defence.
The Constitutional Court, if it chooses to become involved in the merits of the matter, may be of assistance in interpreting the phrase in question. It is conceivable that the court will regard the entire review application as being no more than an attack on a non-binding decision of a panel put together to advise parliament on its essentially political decision-making process concerning the complaint. The court may elect not to involve itself in politics in the middle of the process created to deal with impeachment complaints. It may, as it often does, defer to the parliamentary process that is still unfolding and only become involved if any party is still dissatisfied at the end of that process. If the ANC continues to rally around Ramaphosa, it may command enough votes in parliament to see to it that the two-thirds majority required to impeach him is not attained, and that the simple majority decision to proceed with the impeachment inquiry is also not reached.
Ramaphosa has clearly been stung by the panel report. So much so that he seriously considered resigning. It does nothing for his reputation, may prejudice his chances of re-election and certainly lowers his dignity. It brings to mind the famous New Zealand case of the Erebus air crash in which the judge chairing the commission of inquiry into the disaster fingered the government for covering up, with a “litany of lies” its role in the true causes of the crash, without forewarning the government of his intention to do so. Eventually, in the Privy Council in London, the matter was finally determined in favour of the New Zealand government, despite the cover-up having been established on the evidence presented. The point is that non-binding decisions are, in the right circumstances, reviewable by the courts. Whether the Constitutional Court will follow the Erebus line remains to be seen. The court is alive to the dangers of SA becoming a juristocracy and may require that the political processes be seen through to finality rather than intervening itself at this early stage. Its regular and default position is to defer to the other branches of government.
The alleged abuse of office in contravention of Section 96(2)(b) for using General Rhoode as the unofficial investigating officer in the matter and for asking the president of Namibia to help recover the stolen foreign currency may or may not be serious enough to justify impeachment proceedings. The risk of a conflict of interests is apparent, but whether bad faith and seriousness are also present may prove to be challenging legal questions on the record made available to the panel. It is upon these questions that the Constitutional Court is asked to review the findings made and to set them aside as unlawful findings pointing toward a full blown impeachment hearing in parliament that may be comparable (but, please Wim Trengove, not as protracted and sometimes farcical) as that involving the Public Protector.
The one aspect on which there is very little wriggle room available to the president is his alleged contravention of Section 34 of the Prevention and Combating of Corrupt Activities Act. It is the only aspect of the matter that involves a possible crime on the part of the president. All of the others amount to non-criminal violations of the Constitution that would, if proved, render the president a constitutional delinquent, but not a criminal.
Whether they are serious enough or were committed in bad faith so as to justify impeachment remain open questions at this stage.
A new criminal offence is created by Section 34. If a theft involving more than R100,000 is committed “any person who holds a position of authority who knows of the theft …must report such knowledge … or cause such knowledge … to be reported” to the Hawks. The “any person” expressly includes the members of close corporations. The president was the only member of the close corporation from which the foreign currency was stolen. He was accordingly obliged to report or to cause the theft to be reported to the Hawks. No such report was made nor caused to be made. The president elected to throw a blanket of secrecy over the matter instead of reporting it to anyone other than General Rhoode. It is unlikely that a vague and general instruction to the latter to do the necessary about the theft is enough. As a sentence of up to ten years for contravening the duty imposed by Section 34 is possible, it is clearly a serious matter. As it was the decision of the president to hush up the burglary, he can hardly say he acted in good faith in not reporting it or causing it to be reported.
Big burglaries are not kept secret in a system of governance that is designed to ensure accountability, responsiveness and openness. These three values are fundamental to the new order ushered in by the constitutional dispensation currently in place in SA. All are conspicuously absent in the manner in which the president has, on his own showing, reacted to the burglary. He succeeded in keeping it under wraps until Arthur Fraser, a villain of the Zondo Commission Report, laid his criminal complaint in June 2022.
The heat is now on the criminal justice administration which has been seized of the matter for six months. If it is working “diligently and without delay” on the matter, as the Constitution requires it to do, it ought shortly to be in a position to decide without fear, favour or prejudice whether it is prepared to charge the president with contravening Section 34. It is not a decision to be made lightly. The step aside rule of the ANC will oblige the president to withdraw his candidature for the presidency of the ANC when it deliberates at Nasrec between 16 and 20 December 2022 or depart from representative politics if he wins and the decision to prosecute comes later than the conference. The notion of equality before the law, as incorporated in Section 9 of the Bill of Rights, will be tested.
It can be expected that , if the Constitutional Court decides to entertain the merits of the review, there will be much argument on the nature of the filtering process the panel was mandated to conduct. At issue is the proper interpretation of its task of establishing whether or not “sufficient evidence” (showing the “seriousness” of the violations and bad faith on the part of the president) was placed before the panel to justify its findings that a full blown impeachment hearing is indicated. The difference between the full hearing, at which evidence will be led and tested, and the panel’s work on the documentation placed before it without viva vice evidence will hopefully be properly explained and defined in authoritative fashion for future guidance on keeping presidents on the path designed for them in the Constitution.
To simplify: does a conspectus of the documentation placed before the panel reveal enough smoke from a big enough fire to justify calling in the impeachment hearing fire brigade to test the evidence against the president?
It will certainly be interesting to see what the court makes of the preliminary responsibility of the Speaker to see to it that the complaint is in order before appointing the panel. In the words of Rule 129A the Speaker must ensure that the motion is compliant with the criteria for complaints founding an impeachment complaint. These criteria include the production of the evidence founding the complaint. Who were the panel members to question the Speaker’s decision on this aspect?
*Paul Hoffman, SC, is a director of Accountability Now
Read more:
- Paul O’Sullivan: Ramaphosa has been set up, must not abandon SA by resigning
- Herman Mashaba: Why Ramaphosa must go – he’s clueless and corrupt
- Ramaphosa shouldn’t resign but we “have to proceed to second phase” in impeachment process
