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ConCourt to hear EFF’s case on Phala Phala impeachment proceedings

ConCourt to hear EFF’s case on Phala Phala impeachment proceedings
EFF leader Julius Malema. (Photo: Gallo Images / Lubabalo Lesolle)
Nonkululeko Njilo
By Nonkululeko Njilo
25 Nov 2024
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President Cyril Ramaphosa has so far avoided legal liability for his part in the Phala Phala case. This week, the Constitutional Court will hear the EFF and ATM’s bid challenging the National Assembly’s rejection of a panel’s report that could have led to impeachment proceedings.

The Constitutional Court is set to hear the Phala Phala case on Tuesday, 26 November 2024, with the African Transformation Movement (ATM) arguing that it will reinforce Parliament’s role in holding the executive accountable. The party also believes the case will establish a key precedent, signalling that future presidents must exercise their power responsibly and ethically.

The matter was brought to court by the EFF after the Reserve Bank, South African Revenue Service and the Public Protector each pursued inquiries into the matter and found no wrongdoing on the part of President Cyril Ramaphosa. 

eff phala phala malama EFF leader Julius Malema. (Photo: Gallo Images / Lubabalo Lesolle)



The investigations came after former correctional services commissioner Arthur Fraser filed a criminal complaint against Ramaphosa in 2022, accusing him of covering up a theft at his Phala Phala farm in Limpopo. 

Fraser claimed that $4-million concealed in couches and mattresses was stolen from the farm in February 2020.

Months after the allegations surfaced, Parliament, under Section 89 of the Constitution, established an independent panel which had to determine whether Ramaphosa had violated the Constitution or the Code of Executive Ethics.

The committee found 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”.

The report was later debated by Parliament in December 2022, when 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.

This was a big blow for political parties like the EFF, ATM and now MK which have repeatedly called for Ramaphosa to face the music over his involvement. 

In October 2024, the director of public prosecutions (DPP) in Limpopo, advocate Mukhali Ivy Thenga, decided not to prosecute anyone in the Phala Phala case after a “comprehensive investigation process” conducted by the Directorate for Priority Crime Investigation (DCPI).

Read more: Ramaphosa off the hook in Phala Phala case after NPA declines to prosecute 

Presidential accountability


In court papers, the EFF argues that by failing to adopt the Section 89 report and have the matter referred to the impeachment committee, the National Assembly failed to exercise oversight over Ramaphosa and hold him accountable.  

“Considering the evidence against him, the National Assembly’s failure to do so must be declared unlawful. In addition to this, the EFF seeks a finding by this Court that Parliament should amend the Rules that were enacted in order to give proper effect to the impeachment process contained in section 89 of the Constitution,” the party argues.

Former acting speaker of Parliament Lechesa Tsenoli has however argued 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, which is not in line with the Constitution.

“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,” Tsenoli said in an affidavit.

The EFF also argues that by allowing the National Assembly to vote on a report at the early fact-finding stage, the possibility exists that a party that controls the majority of the votes in the National Assembly will always vote down such a panel’s findings.  

“Thus, the matter will never pass the first stage of the impeachment process. There will never be a full ventilation of the issues before an Impeachment Committee. The Executive will never be held accountable even in circumstances where the evidence suggests otherwise,” the EFF argues.  

ATM president Vuyolwethu Zungula believes double standards were applied, specifically lamenting SARS for “its glaring inconsistency” and failure to hold Ramaphosa accountable.

“The revelation that SARS has opened a criminal case against Hazam Mustafa, the buffalo buyer, while neglecting to press charges against President Ramaphosa, is not only an affront to justice but also a clear indication of selective enforcement,” Zungula said.   

Zungula is supporting the EFF’s case and had previously gone to the high court to have the public protector’s report, which absolved Ramaphosa of any wrongdoing, overturned.

Both the EFF and ATM maintain that while all those involved in the Phala Phala scandal appear to be facing the long arm of the law, “the President and his party have eliminated any process that is in place to hold the executive accountable for breaching the Constitution.”

The EFF further argues, “SARS’ conduct (by instituting criminal proceedings against Mr Mustafa) confirms the illegality of the transaction that the President was a party to. Self-evidently, one party to the same transaction cannot be alleged to have acted unlawfully whilst the co-corresponding party did not.”

Veracity of evidence


Ramaphosa, the National Assembly and ANC are opposing the EFF’s case. Their arguments centre around the alleged flaws in the Section 89 panel report. 

The panel, chaired by former Chief Justice Sandile Ngcobo, was required to determine whether there was sufficient evidence to justify the removal of the President, but it admitted that it was not given all the information on the issue and that Ramaphosa was correct to criticise Fraser’s statement as “full of hearsay”.

Read more: Is prima facie evidence sufficient if it is neither prima, facie nor even evident?

The panel faced criticism for failing to verify Fraser’s claims before coming to its conclusion and those opposed to the EFF’s case say MPs had the right to reject it. 

In her preview of the case, Franny Rabkin from the Sunday Times quoted Ramaphosa’s attorney Peter Harris: “It is not an answer for the independent panel to say that its function is not to establish veracity. Its duty is to establish sufficient evidence. The starting point is that the evidence must qualify as admissible, reliable and credible.” DM

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