South Africa

Ramaphosa says EFF ‘patently delayed’ in launching ConCourt challenge to Parliament’s Phala Phala vote

EFF members protest outside the Constitutional Court in Johannesburg on 26 November 2024, where the party is asking the court to overrule a National Assembly vote against the impeachment of President Cyril Ramaphosa in connection with the Phala Phala farm scandal. (Photo: Sharon Seretlo / Gallo Images)

By Victoria O’Regan

26 Nov 2024

‘There has been a patently unreasonable delay, there has been no attempt to explain the delay, and there has been no attempt to produce facts to show why the delay should be overlooked,’ Advocate Geoff Budlender argued for President Ramaphosa on Tuesday.

In a marathon hearing on Tuesday, 26 November, the Economic Freedom Fighters (EFF) argued that the National Assembly’s vote against taking action on the Section 89 independent panel report on the cash-in-couch allegations against President Cyril Ramaphosa was irrational and unlawful.

The EFF is asking the Constitutional Court not only to set aside the National Assembly’s decision against adopting the report by the independent panel, but to substitute it with a decision in favour of adopting the report and institute impeachment proceedings, or alternatively, refer the matter back to the National Assembly to vote afresh.

In addition to challenging the vote, the EFF is also challenging the legality of one of the Rules of the National Assembly, which allowed the vote to take place. The EFF is requesting the court to declare Rule 129I of the National Assembly inconsistent with the Constitution, as it allows Parliament to “vote against any possible impeachment proceedings in circumstances where a prima facie case has been made against a sitting president by the panel”.

Read more: EFF in Constitutional Court over challenge to National Assembly’s Phala Phala report vote

In its court papers, the Red Berets asked for the court to order that the Speaker of the National Assembly be given 12 months to amend the rule.

“The short point about the need for the amendment is this: if Parliament is given an unfettered discretion in the way that it currently is, then cases like this which we say are deserving cases, will be voted down. And either it will be voted down for spurious reasons – the distinction issue which I’ve dealt with already – or political reasons which we learnt about through the ANC’s affidavit,” Advocate Kameel Premhid argued for the EFF on Tuesday.

The EFF approached the court in February this year, challenging the legality of the December 2022 vote in which Parliament decided against instituting an impeachment inquiry into the President. The party brought the matter to the ConCourt after the Reserve Bank, South African Revenue Service and Public Protector each pursued investigations into the matter and found no wrongdoing on the part of Ramaphosa, Daily Maverick’s Nonkululeko Njilo reported.

The investigations came after former correctional services commissioner Arthur Fraser, who has been implicated in testimony at the State Capture Commission of Inquiry, opened a criminal complaint against Ramaphosa in June 2022 for allegedly aiding in concealing a crime at his private Phala Phala farm in Limpopo.

Fraser claimed that $4-million in cash, concealed in couches and mattresses, had been stolen from Phala Phala in February 2020.

Read more: How Arthur Fraser checkmated Cyril Ramaphosa

Months after the allegations came to light, Parliament, under Section 89 of the Constitution, established an independent panel, chaired by retired chief justice Sandile Ngcobo, to determine whether Ramaphosa had violated the Constitution or the Code of Executive Ethics.

The independent panel found there was prima facie evidence that the President had an impeachment case to answer over “serious violations” of the Constitution for exposing himself to a conflict of interest, doing outside paid work and contravening the Prevention of Corrupt Activities Act.

However, the panel’s report was debated and its adoption subsequently refused by the National Assembly in December 2022.

‘Red herring’

EFF members outside the ConCourt in Johannesburg EFF members protest outside the Constitutional Court in Johannesburg on 26 November 2024, where the party is asking the court to overrule a National Assembly vote against the impeachment of President Cyril Ramaphosa in connection with the Phala Phala farm scandal. (Photo: Sharon Seretlo / Gallo Images)

On Tuesday, Premhid said the ANC in its arguments sought to draw a distinction between “sufficient information” and “prima facie evidence” for the purposes of an impeachment motion.

Justice Steven Majiedt said he had “a number of problems” with the EFF’s case.

Majiedt took issue with the delay in launching the court application, 14 months after Parliament voted against impeaching Ramaphosa.

“Here you have a 14 month delay on the papers, undisputed. There is no explanation for the delay,” Majiedt said, adding that since the vote the 2024 general election had resulted in a new Parliament. “There’s an argument… that once the sixth Parliament has dissolved, Section 49 of Rule 351 of the NA rules, says sixth Parliament your life is over…,” he said.

Justice Leana Theron also said she was concerned that the EFF provided no explanation for the 14-month delay in launching its court bid.

“It seems that the court is creating problems for itself where it attempts to assist litigants, and perhaps the court should not be doing that so litigants should know, when there is a delay, there’s a duty upon them to provide an explanation to the court,” Theron said.

Read more: ANC, EFF trade legal blows in Constitutional Court over challenge to Parliament’s Phala Phala vote

The African Transformation Movement (ATM) is a second applicant in the matter.

Advocate Anton Katz for the ATM said on Tuesday that the debate over whether there needed to be “sufficient information” and “prima facie evidence” to institute impeachment proceedings was “a red herring”. He added that the delay in launching the application is another “red herring”.

“Prima facie evidence at its weakest is sufficient evidence to institute a prosecution,” he said. “End of the story; there’s no debate.”

Katz argued that a political majority in Parliament cannot “stymie an impeachment committee hearing if there is prima facie evidence or sufficient evidence”.

“That is exactly what Parliament has done in this case. It has allowed for the 129I process to be politicised by that vote after the panel report,” he said.

‘Fatally late’

The Speaker of the National Assembly, the National Assembly, Ramaphosa and the ANC are all respondents in the matter.

Advocate Andrew Breitenbach for the Speaker and the National Assembly, argued on Tuesday that the EFF and ATM’s challenge to Rule 129I of the National Assembly was “ill-founded” and the challenge to the National Assembly’s vote has been brought “fatally late”.

“Our basic problem with the lateness is that the sixth Parliament came to an end, with it all the business before the sixth Parliament. The composition of the seventh Parliament elected on 29 May is wholly different to the sixth Parliament, and there can therefore be no resuscitation of this motion without doing a violence to that very fundamental part of our democracy,” Breitenbach said.

“We are in a situation of impossibility [and] mootness… The applicants have delayed so long that it is impossible to do anything other than give a declaration in the air in this case,” he added.

Advocate Geoff Budlender for President Ramaphosa also argued that there had been an unreasonable delay in the EFF approaching the court with this case.

“There has been a patently unreasonable delay, there has been no attempt to explain the delay, and there has been no attempt to produce facts to show why the delay should be overlooked,” Budlender said.

Judgment has been reserved in the case. DM

Categories:

South Africa

Tags:

DM is much better if you are signed in...

South Africa

‘Red herring’

‘Fatally late’