Parliamentary rules stall ANC move to shield President Ramaphosa from Phala Phala scandal scrutiny — for now

22 Sep 2022

It may seem arcane and obtuse when political battles are fought by parliamentary rules. But these are the tools when the ANC moves to protect President Cyril Ramaphosa over the Phala Phala farm forex robbery, echoing steps in the Nkandla saga.

On Thursday, the ANC claimed a lack of prep time and being ambushed to try to nix the DA swapping its topic of discussion for one on an ad hoc committee to probe the robbery of dollars stuffed into sofa cushions at the Phala Phala farm of President Cyril Ramaphosa.

It didn’t quite turn out that way for the governing party. The DA had crossed all its t’s and dotted all its i’s in parliamentary rules — and accepted as a compromise National Assembly Speaker Nosiviwe Mapisa-Nqakula’s decision in Thursday’s programming committee that the discussion be scheduled for next week.

DA Chief Whip Siviwe Gwarube afterwards said while the rescheduling of the draft resolution was a compromise — the party was ready to go on Thursday afternoon — it was also “a win for accountability” regarding Parliament’s role of holding the President and state institutions to account. “We will fight against any further delays,” said Gwarube.

That DA motion was a neat sleight of hand after its June request for such an ad hoc committee was turned down by the Speaker. And it was executed within the parliamentary rules that allow political parties to own what they propose for debate. Rule 124(7) stipulates 24 hours’ written notice ahead of placement on the Order Paper.

On Friday, 16 September, notice of withdrawing the original topic on illegal land invasions, and a new draft resolution to replace it, were officially submitted to the parliamentary administrative machinery. Over the weekend, officials edited the new resolution to meet parliamentary requirements. Correspondence kept the Speaker’s Office up to date. At Tuesday’s special Chief Whips Forum, the amended programme for Thursday’s mini plenary discussions was tabled, with the DA’s new draft resolution.

No one seemed to have objected. And this is where it gets interesting.

Opposition parties understood the change of topic and went off to brief speakers to prepare for the discussion in a couple of days’ time.

The ANC, however, wrote to the parliamentary administration, claiming that Tuesday’s forum “did not have a clear conclusion and guidance, as there were strong views regarding the late notification impacting on parties being able to prepare adequately for the debate”.

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ANC programming whip Mina Lesoma requested that a final decision be taken at the next day’s programming committee, according to a letter seen by Daily Maverick.

And so on Thursday, with just hours to go before the discussion, the ANC made another attempt to keep Phala Phala off the Order Paper.

“This matter was smuggled into the Chief Whips Forum on Tuesday,” said ANC Deputy Chief Whip Doris Dlakude, who added that the DA was trying to pre-empt the independent panel appointed to assess whether the President had a case to answer.

“We reject this. The draft motion cannot be discussed in the mini plenary. We revert back to the motion agreed last week.”

Opposition parties sharply disagreed.

As Gwarube put it, “The matter was dealt with. We followed the rules. Should we change the motion, which is within our rights, we have done the necessary.”

EFF MP Hlengiwe Mkhaliphi agreed with the revised DA motion, arguing the ANC must stop creating confusion — the impeachment motion processes under Section 89 of the Constitution were separate from any parliamentary ad hoc committee.

African Transformation Movement (ATM) leader Vuyolwethu Zungula, who brought that impeachment motion, also came out in support: “On Tuesday there was a decision and a discussion and the caucuses have agreed… Allow the DA’s motion to be debated in line with their wishes.”

African Christian Democratic Party (ACDP) MP Steve Swart said preparations were done following Tuesday’s Chief Whips Forum meeting. “We are ready to debate the Phala Phala issue. The rules allow the DA to replace their topic,” said Swart.

The ANC got backing only from Al Jama-ah; the IFP raised terse criticism about the last-minuteness of this all.

On the Phala Phala robbery, the parliamentary fault lines run almost straight through the middle of the House between the governing ANC and the opposition.

It echoes the saga over the taxpayer-funded upgrades to former president Jacob Zuma’s Nkandla homestead. While the EFF’s “Pay back the money” protests disrupted sittings from August 2014, several ad hoc committees moved to absolve Zuma from repaying anything for the cattle kraal, chicken run, swimming (fire) pool, amphitheatre and visitors’ centre as then Public Protector Thuli Madonsela’s remedial action required.

In March 2016, the Constitutional Court unanimously found the National Assembly had acted “inconsistent with the Constitution” in replacing the Public Protector’s remedial action with its own to absolve Zuma.

On the Phala Phala robbery, Ramaphosa has invoked “due process” to not respond to questions about the scandal in Parliament, which have dominated since the Presidency Budget Vote debate in June.

Answers to Parliament would come only after investigations — by the Hawks, South African Reserve Bank and Public Protector — had run their course, he had been “counselled and advised”, Ramaphosa told MPs on 31 August.

That presidential Q&A session in the House was disrupted, leaving the Phala Phala saga question slot incomplete. Those four follow-up questions are being added to the next Q&A session on 29 September.

Throughout all of this runs the Section 89 impeachment motion processes, now at the stage of an independent panel to assess whether Ramaphosa has a case to answer. Chaired by retired Chief Justice Sandile Ngcobo, the panel has not yet started its work after the EFF and DA objected to public law academic, columnist and author Richard Calland over his public pro-Ramaphosa statements. A decision on Calland’s participation on the panel is pending, according to Mapisa-Nqakula on Thursday.

Meanwhile, the Joint Standing Committee on Intelligence (JSCI) has declined to probe the Phala Phala scandal because “no independently verifiable information” existed regarding allegations against Deputy State Security Minister Zizi Kodwa and the abuse of the SAPS Crime Intelligence secret services account.

But the pending Phala Phala ad hoc committee discussion may yet turn out to be an unpleasant jolt.

Not only is the discussion now scheduled for the same week as Ramaphosa wraps up the outstanding Phala Phala follow-up questions from MPs, it looks set to take place in a full sitting, not a mini plenary.

That means it can go immediately to a vote, as must happen on draft resolutions. And while the governing ANC is set to defeat such a Phala Phala ad hoc committee on the back of its numbers in the House, the optics of the ANC in Parliament yet again defending a President under the cloud of a scandal are far from pretty. DM

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