ANC, EFF trade legal blows in Constitutional Court over challenge to Parliament's Phala Phala vote

The ANC is defending its right to have voted against an impeachment in­­quiry into President Cyril Ramaphosa, denying that a “climate of fear” was used to force its MPs to vote along party lines.

ANC secretary-general Fikile Mbalula has hit out at EFF president Julius Malema in court papers, accusing the party of playing politics in the legal arena.

“The EFF labels this application as one brought ‘in defence of the principles of accountability, responsiveness and openness’. Nothing could be further from the truth. This application is purely political.

“This is why the EFF has engaged in an extensive – although speculative – supposition as to what transpired within the circles of the ANC. This is also why the EFF has directed much of its attack at its political opponents,” Mbalula said in an affidavit submitted to the Constitutional Court.

The EFF approached the court in February, challenging the legality of a December 2022 vote in which Parliament decided against instituting a full impeachment inquiry.

“In essence, the National Assembly has acted irrationally by blocking the further investigation of a prima facie case against the President despite the objective findings of the Section 89 Independent Panel ('the Panel'), whose task was specifically aimed at performing a preliminary investigative function; and failed to properly consider the content of the Report by effectively setting aside the Panel’s conclusions without establishing a factual or legal basis upon which to do so,” Malema said in papers before the court.

“It demonstrates a concerning attitude that the majority party will use its numerical strength to politically exonerate and protect its leader despite the legal cogency of the case that the President must answer.”

Malema and Mbalula’s affidavits are among hundreds of papers filed at the court, with the latest directions from the court providing parties with a timeline for the last written arguments to be filed by the end of August.

The deadline is an indication that the case will soon be set down for oral hearing.

President Cyril Ramaphosa. (Photo: Gallo Images / Netwerk24 / Jaco Marais)

In June 2022, former Correctional Services Commissioner Arthur Fraser lodged a criminal complaint against Ramaphosa for allegedly aiding in concealing a crime at his private Phala Phala farm in Limpopo.

Fraser alleged that $4-million (R73-million at the current exchange rate), concealed in couches and mattresses at the farm, had been stolen in February 2020. The Reserve Bank, the South African Revenue Service, the Public Protector and Parliament all looked into the allegations for different reasons.

In Parliament, an independent panel was asked to consider whether Ramaphosa could have violated the Constitution or the Code of Executive Ethics. The panel, which was set up under Section 89 of the Constitution, consisted of retired Chief Justice Sandile Ngcobo, retired Judge Thokozile Masipa and Advocate Sello Mahlape SC.

The trio found that there was prima facie evidence that Ramaphosa might have violated Section 96(2)a of the Constitution “by acting in a way that is inconsistent with his office” and by “exposing himself to a situation involving a conflict between his official responsibilities and his private business”.

The panel also found that Ramaphosa might have violated the Prevention and Combating of Corrupt Activities Act.

ANC secretary-general Fikile Mbalula briefs the media on the Jacob Zuma disciplinary hearing outcome at Luthuli House on 29 July 2024 in Johannesburg, South Africa. This comes after former president Jacob Zuma was officially expelled from the ANC. (Photo: Gallo Images / Sharon Seretlo)

Not sufficient evidence

In his affidavit, Mbalula said that, although the panel had found there was a prima facie case for Ramaphosa to answer, it had misunderstood its mandate and used the words 'prima facie evidence' instead.

“An important safeguard built into Section 89 by the National Assembly rules is to ensure that Parliament does not embark on an impeachment process without regard to evidence, as it could have the effect of subverting the will of the electorate, by removing a democratically elected President.

“The process may only be triggered where there is sufficient evidence to conclude that grounds in Section 89(1) exist. The concept of ‘sufficient evidence’ or ‘sufficient proof’ is common in our law. It is not the same thing as ‘prima face evidence’, which the Panel repeatedly slipped into the inquiry,” Mbalula said.

He added that when the ANC National Working Committee met to consider the vote, it was advised by a legal opinion that concluded that the party should vote against adopting the report.

When Parliament debated the report in December 2022, at least 214 MPs voted against its adoption, with 148 votes in favour and two abstentions. The 214 votes consisted of 212 ANC votes and one vote each from Cope and Al Jamah-ah. Mbalula pointed out that some ANC MPs did not show up for the vote.

“The EFF contends that the decision to vote against the motion was so unreasonable that no reasonable Member of Parliament could have come to it.

“The irony, of course, is that EFF MPs did in fact ‘toe the party line’, unlike the ANC MPs who acted in a careful, deliberative and non-impulsive manner,” he said.

In his founding affidavit, Malema accused the ANC of placing “political incentives above its legal duties to the Republic” and he doubled down on this view in a replying affidavit filed on 16 July. Malema said Mbalula’s affidavit made “unfounded, inappropriate and legally flawed allegations regarding how the ANC voted”.

Malema questioned why the ANC had used Ramaphosa’s legal challenge to the Section 89 Independent Panel report as a justification for voting the way it did. The Constitutional Court dismissed Ramaphosa’s case and the President did not raise it in another forum.

“Unsurprisingly, the President has not sought to review it any further because the ANC prematurely voted it down, allowing its party president to escape any real accountability,” Malema said.

The EFF’s Julius Malema. (Photo: Gallo Images / Luba Lesolle)

Parliamentary rules

In addition to challenging the vote, the EFF has also challenged the legality of one of the Rules of the National Assembly, which allowed the vote to take place.

“The National Assembly is not absolved of its duty to hold the President to account by the difficulties that he is the leader of the ruling party. Where there is good reason (and prima facie evidence) to believe that the President violated the Constitution, the National Assembly has no choice but to take action. Its persistent inaction is unconstitutional,” Malema said.

African Transformation Movement (ATM) president Vuyolwethu Zungula has supported the EFF’s case by filing an affidavit to intervene in it. The ATM had previously gone to the high court to have the Public Protector’s report, which absolved Ramaphosa of any wrongdoing, overturned.

“The ATM, once intervened in the matter, will argue and demonstrate how the National Assembly, led by the majority party, as it then was, used its majority power to do unjust [sic] its constitutional mandate to hold the executive accountable … ATM will argue that under such circumstances, where the majority abused its power to protect the wrong, this Court has powers to protect the minority,” said Zungula.

Read more: Ramaphosa’s Farmgate scandal – a timeline of what we know (and don’t know) so far

Parliament responds

The former acting speaker of Parliament, Lechesa Tsenoli, has deposed an affidavit on behalf of the Speaker and the National Assembly challenging the EFF’s arguments. Tsenoli took over as acting speaker once Nosiviwe Mapisa-Nqakula vacated the position in March 2021 as a result of being charged with corruption.

His affidavit was submitted before the 7th Parliament was sworn in on 14 June. Tsenoli told the court that the EFF’s proposed rule change would give power to the independent panel to “direct” a committee of the National Assembly on how to conduct its work.

“That outcome, with respect, would be inconsistent with the principle of separation of powers and with conferral on the NA [National Assembly], by Section 57(1)(a) of the Constitution, of the authority to determine and control its internal arrangements,” he said.

Tsenoli also argues that the EFF should have brought its application much sooner, instead of 14 months after the initial decision was made.

“I respectfully submit the EFF has delayed unreasonably in bringing the present application seeking the relief it does in relation to the NA’s decision of 13 December 2022…

“I respectfully point out that the EFF’s founding affidavit does not contain an explanation for its delay in challenging the constitutionality of the NA’s 13 December 2022 resolution.”

Ramaphosa’s lawyers have also submitted an affidavit on his behalf, raising similar issues about the delay. His lawyers took up a significant portion of their response with questioning how the inquiry was done.

They point to particular evidence supplied by Fraser and say the panel should have considered whether it was legally acquired.

“What evidence supports those conclusions? There is only Mr Fraser’s allegations and a redacted report of the Namibian Police Crime Intelligence. Mr Fraser’s allegations are just that: allegations. They are not evidence,” said Peter Harris, one of Ramaphosa’s lawyers.

He added that the panel had placed a “reverse onus of proof” on the President.

“This was irrational because the Independent Panel’s task was to determine the sufficiency of the evidence that was before it; its task was not to consider whether there are questions that the President should answer,” said Harris.

The Constitutional Court is yet to set a hearing date for the case.

Series of legal challenges

This EFF case is not its first dealing with Phala Phala and is unlikely to be the last.

The ATM has gone to the high court to challenge a report by Public Protector Kholeka Gcaleka that cleared President Cyril Ramaphosa of wrongdoing. The case is yet to be heard.

In August 2023, the DA announced it had taken the SA Reserve Bank to the high court to have its report set aside. The first part of the challenge involved the DA applying to get the full report. It was later made public and the DA is yet to challenge the report itself. DA federal chairperson Helen Zille said the party was still receiving legal advice.

Ramaphosa went to the Constitutional Court to challenge the Section 89 Independent Panel’s report, but the court dismissed his application in March 2023. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.