As President Ramaphosa faces impeachment, tough political and constitutional decisions await

In response to the Section 89 panel recommendation, the Presidency said it recognised the “unprecedented and extraordinary moment for South Africa’s constitutional democracy”. 

https://www.dailymaverick.co.za/article/2022-11-30-sa-politics-in-turmoil-as-panel-says-president-ramaphosa-must-face-impeachment/

Ramaphosa was considering the report and would make an announcement in “due course”, according to the statement that reiterated: 

“I have endeavoured, throughout my tenure as president, not only to abide by my oath, but to set an example of respect for the Constitution, for its institutions, for due process and the law. I categorically deny that I have violated this oath in any way, and I similarly deny that I am guilty of any of the allegations made against me.” 

It’s exactly what Ramaphosa had also told the three-strong Section 89 panel chaired by retired chief justice Sandile Ngcobo, according to the presidential statement leaked on Wednesday ahead of the report’s publication. 

In that tactically timed leak, part of an overall strategy of political spin, was Ramaphosa’s request for the panel to conclude “this matter ought not to be taken any further”. 

But ultimately facts matter — and the panel decided differently. 

Its 82-page report raised “enduring questions” over the source of the stolen money, why the theft at the President’s home was not reported properly, or to any other police officer than the head of the presidential protection detail, and why the SAPS requested their Namibian counterparts to handle the matter “with discretion”. 

And so in a carefully phrased 72 words, the panel recommended impeachment proceedings against the President for paid work outside his official duties, exposing himself to a conflict of interest and contravening the Prevention of Corrupt Activities Act. 

“There was a deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly … 

“The request to the Namibian Police to “handle the matter with discretion” confirms this intention. 

“The president abused his position as head of state to have the matter investigated and seeking the assistance of the Namibian president to apprehend a suspect. 

“There was more foreign currency concealed in the sofa than the amount reflected in the acknowledgement of receipt. This raises the source of the additional currency…” 

In parallel to the Presidency statement reiterating Ramaphosa’s good governance credentials, the ANC called a special National Executive Committee (NEC) virtual meeting for Thursday evening from 7pm, according to the notice seen by Daily Maverick. 

Speculation on Wednesday, even, was that Ramaphosa would offer to resign, or insist the ANC continues to support him.

And this is where the options emerge as politically awful at worst, and awkward at best.

The Constitution, strictly speaking, does not deal with a presidential resignation. However, precedent exists from September 2008 when then president Thabo Mbeki resigned in line with the ANC NEC decision to recall him in the bruising political battle with party deputy president Jacob Zuma. 

After Mbeki’s resignation, Parliament met on 21 September to accept it, effective from the 25th when the National Assembly elected a new president, Kgalema Motlanthe. 

Should Ramaphosa decide to resign — and that’s not a given at this point — it could effectively put Deputy President David “DD” Mabuza in the running as president.

But resignation may just be a figment of imagination in the minds of those opposed to Ramaphosa, inside and outside the so-called radical economic transformation grouping. 

If Ramaphosa fights to stay on, it’s expected he’d muster sufficient support. Right now CR22 has put Ramaphosa in the lead to retain the ANC presidency for a second term. 

Ramaphosa has the support from if not of all his ANC, then large sections crucially when it matters. In Parliament, for example, presidential protection was extended by governing party MPs voting down the DA motion debate for a Phala Phala ad hoc committee that would have had a wider reach than the S89 impeachment motion.

Read more in Daily Maverick: “ANC MPs leveraging Parliament to take the sting out of Ramaphosa’s Phala Phala scandal” 

The ANC parliamentary caucus had pushed a line of separating Ramaphosa the President from Ramaphosa the businessman with shares in a business.

Read more in Daily Maverick: “The Phala Phala forex theft — it’s not the President, it’s his business, says ANC”

But the Section 89 independent assessment panel finding of serious presidential violations of the Constitution has shifted the ground. 

The ANC in Parliament faces a conundrum — vote for the panel report and recommendation and effectively move to the second phase of impeachment, the establishment of a committee that would, for example, hold public hearings. 

It’s still possible that no impeachment would happen. That impeachment committee would have to decide on that, and two thirds of the National Assembly would have to support such a finding, according to Section 89 of the Constitution. 

Or the ANC does what it usually does when under criticism, perceived or real — draw up the laager. That could mean actually voting against the Section 89 independent assessment panel to protect the President. 

The precedent also exists for that — some eight votes against opposition motions of no confidence in Zuma, including a crucial one in August 2017 that ANC heavyweights styled as an opposition coup d’état and regime change. 

The damage to Parliament’s status, reputation and standing would be dire. 

DA Chief Whip Siviwe Gwarube on Wednesday night said this was “a defining moment for our constitutional democracy and must not be taken lightly” and the focus must be firmly on Parliament. 

“While a vote on whether to institute impeachment proceedings against the president require a 50% majority, we do hope that the ANC in Parliament will put party interests aside and abide by the constitutional obligation we all have.” 

United Democratic Movement leader Bantu Holomisa, meanwhile, said there was no further need for Parliament to consider this matter — Ramaphosa should be recalled by the ANC. 

Visit Daily Maverick’s home page for more news, analysis and investigations

“South Africa cannot afford another scenario where the nation and the world is focused on the misdeeds of our president. We cannot afford to have a president in office facing these serious indictments.”

The Section 89 motion initiator, African Transformation Movement (ATM) leader Vuyolwethu Zungula, welcomed the panel findings and recommendations. 

The EFF has also welcomed the Section 89 panel report. “The findings are tantamount to a betrayal of South Africa by a man who has been entrusted with upholding, defending and advancing this country’s laws,” it said in a statement, adding later: “The EFF reaffirms that Ramaphosa runs a sophisticated money laundering operation in which he uses his employees to avoid direct accountability.” 

The matter will draw to a head on Tuesday, 6 December when the report is scheduled in the House. Given the politics, it will be debated, and voted on. 

But it’s not the end. 

[embed]https://www.dailymaverick.co.za/article/2022-12-01-ramaphosas-farmgate-scandal-a-timeline-of-what-we-know-and-dont-know-so-far/[/embed]

The police, Public Protector and the South African Reserve Bank (SARB) probes are ongoing. 

Speaking during Tuesday’s update of Hawks business, the elite unit’s boss, Lieutenant-General Godfrey Lebeya, said 68 statements had been taken in relation to the Phala Phala saga, which remains under investigation. 

The 2004 Prevention and Combating of Corrupt Activities Act in Clause 34(1)(b) simply says even a suspicion of theft, fraud, extortion or forgery must be reported to “any police official”. 

And that would include the head of the presidential protection team, according to Ramaphosa’s statement to the Section 89 panel: 

“I reported the housebreaking and theft to (Major) General (Wally) Rhoode as he is responsible for ensuring my safety and security in view of the position I occupy. I expected that he would do all that is necessary and take any other steps required in response to the information I had shared with him.” 

The Public Protector is on public record also as saying investigations are continuing under the 1998 Executive Ethics Act. 

Ramaphosa, who had told the Public Protector the dollars were paid by a Sudanese businessman for buffalo, as he also did to the Section 89 panel, would have insisted he had declared all his financial and business interests — and did not have an active role in, or income from, the farm operations. 

Or as he told the Section 89 panel according to the leaked statement: 

“Ntaba Nyoni, which operates as Phala Phala Wildlife, is a separate legal entity. I am the sole member of the close corporation, but I do not work for it and do not get any remuneration from Ntaba Nyoni…” 

Parliament’s register of members’ interest published on its website reflect these declarations between 2014 and 2017. Since becoming President in February 2018, and resigning from the national legislature, Ramaphosa declares to the Cabinet secretary. 

And while the SARB does not comment on any of its probes, like foreign exchange violations, Ramaphosa in his statement to the Section 89 panel also gave a hint of how he cooperated with that investigation. 

“The SARB asked me to get information from the very persons the ATM claims were its correct interlocutors — the manager of the farm and its relevant employees” 

And so Phala Phala General Manager Hendrik von Wielligh and lodge Manager Sylvester Ndlovu could ultimately be fingered as the responsible persons. 

The Phala Phala saga in all of its aspects is messy. It presents no easy options — not for Ramaphosa, not for the ANC.

Yet what happens next will define the constitutional democratic moment in South Africa — and shape party, state and the country. DM