- Ramaphosa says the independent panel misunderstood its legal mandate and used the wrong approach when looking into the Phala Phala allegations.
- He says the panel relied on hearsay, untested information, and questionable material rather than proper evidence.
- He says the panel went beyond the charges it was supposed to consider and made findings on issues he was never asked to address.
President Cyril Ramaphosa has launched a court bid to have the controversial Phala Phala impeachment panel report set aside, arguing that the panel misunderstood its legal mandate, relied on hearsay and inadmissible material.
He further argued in court papers that the report reached conclusions that were neither rational nor supported by sufficient evidence.
In papers filed in the High Court in the Western Cape, Ramaphosa seeks an order reviewing and setting aside the report produced by the independent panel chaired by former Chief Justice Sandile Ngcobo, together with retired Judge Thokozile Masipa and Advocate Mahlape Sello SC.
The report, issued in November 2022, concluded that information before the panel disclosed prima facie evidence that Ramaphosa may have committed serious violations of the Constitution and the law, as well as serious misconduct.
Ramaphosa argues that the findings should never have been made because the panel fundamentally misunderstood the task assigned to it under the National Assembly's impeachment rules.
The panel used the wrong legal standard
At the centre of Ramaphosa’s challenge is his claim that the panel applied the wrong legal standard when assessing the allegations against him.
According to the President, the rules required the panel to determine whether sufficient evidence existed to show that he had committed a serious constitutional violation or serious misconduct. Instead, he argues, the panel reduced its task to deciding whether there was a prima facie case or whether he had a case to answer.
Ramaphosa contends that this was a crucial legal error because impeachment proceedings against a sitting President are among the most serious constitutional processes available to Parliament. He argues that the panel was required to evaluate whether the available evidence was strong enough to justify such proceedings, not merely whether allegations had been made that warranted further questioning.
He further argues that the panel ignored the requirement that any serious violation or misconduct must have been committed deliberately and in bad faith. According to the application, the panel never properly considered whether the available evidence established bad faith on his part.
Introducing one of his criticisms of the report, Ramaphosa says, “The panel misunderstood its mandate in at least four respects.”
Difference between information and evidence
A major theme running through the application is Ramaphosa’s complaint that the panel failed to distinguish between information and evidence.
He argues that Parliament’s rules allowed members of the National Assembly to place information before the panel. The panel’s duty was then to assess that material, determine what constituted admissible evidence, and decide whether that evidence was sufficient to support the allegations.
Instead, Ramaphosa claims the panel treated information and allegations as though they were evidence without first testing their reliability, admissibility or probative value.
“The panel did not do this,” he says in the affidavit, referring to what he describes as the panel’s failure to sift through information and identify admissible evidence capable of supporting the charges.
According to Ramaphosa, this error affected the panel’s entire assessment and resulted in conclusions being drawn from material that had never been properly tested.
Panel relied on hearsay evidence
One of the strongest attacks in the application concerns the panel’s treatment of hearsay evidence.
Ramaphosa argues that the panel failed to apply the Law of Evidence Amendment Act and overlooked the general rule that hearsay evidence should ordinarily be excluded unless specific legal requirements are met.
He says much of the material relied upon by the panel consisted of allegations whose sources were never properly identified or tested. The application specifically criticises the panel’s reliance on information provided by former State Security Agency director general Arthur Fraser.
According to Ramaphosa, Fraser did not provide direct evidence proving key allegations but instead referred to information and documents that might exist elsewhere. He argues that the panel nevertheless treated those allegations as if they carried evidential weight.
The President says the panel itself acknowledged that parts of Fraser’s material were hearsay, yet still relied on them when reaching its conclusions.
He argues that a proper assessment of admissibility should have occurred before any such material was taken into account.
Concerns about Namibian report and audio recording
The application also challenges the panel’s reliance on a confidential Namibian police report and an audio recording allegedly connected to the investigation into the theft at Phala Phala.
Ramaphosa argues that the panel failed to investigate how these materials came into existence, who obtained them, whether they had been lawfully acquired and whether they were admissible.
He says the panel simply accepted the material without scrutinising its origins or reliability, despite describing the Namibian report as confidential.
According to Ramaphosa, a panel comprised of senior legal figures should have examined whether the material was lawfully before it and whether it should have been excluded altogether. “The Panel had a duty to ensure that any evidence before it is lawfully obtained, or exclude it,” he argues.
Panel made conclusions based on assumptions
Ramaphosa repeatedly accuses the panel of concluding assumptions rather than evidence. One example concerns allegations relating to requests allegedly made to the President of Namibia regarding the apprehension of a suspect connected to the theft.
Ramaphosa argues that the panel reached conclusions despite there being no admissible evidence proving such a request had ever been made.
He also criticises findings relating to Major General Wally Rhoode, saying the panel ignored sworn evidence contradicting allegations against the senior police officer and instead relied on speculation and inference.
According to Ramaphosa, the panel effectively attempted to fill evidential gaps with assumptions rather than proven facts.
Panel exceeded its mandate
Another major complaint is that the panel exceeded the limits of the allegations it had been asked to consider. Ramaphosa says he was invited to answer only four specific charges set out in the motion that triggered the impeachment process. However, he argues that the panel expanded its inquiry into matters that were never part of those charges.
These included questions relating to the source of foreign currency found at Phala Phala, the circumstances surrounding the buffalo transaction involving Sudanese businessman Hazim Mustafa, travel by Rhoode to Namibia and other issues that were not included in the allegations he was required to answer.
Ramaphosa argues that this was unfair because he was never allowed to respond to many of the matters that later featured in the panel’s reasoning.
“The Panel went beyond the four charges,” he says.
Disputes findings on paid work and reporting responsibilities
The President also challenges specific findings made by the panel.
On the allegation that he performed prohibited “other paid work”, Ramaphosa argues that the panel adopted an interpretation of the Constitution that was far too broad. He says ownership of farming interests does not automatically amount to performing paid work prohibited by section 96 of the Constitution.
He points out that his interests were disclosed through official parliamentary and executive disclosure processes and argues that the panel failed to consider whether he acted openly and in good faith.
Ramaphosa similarly disputes the panel’s findings relating to section 34 of the Prevention and Combating of Corrupt Activities Act, which requires certain offences to be reported.
He argues that the panel misunderstood who bears reporting obligations under the legislation and ignored the management structures operating at Phala Phala. According to the application, he was informed of the theft after it had occurred and did not deliberately fail to report it.
Constitutional Court decision brings the challenge back
Ramaphosa notes that he initially approached the Constitutional Court shortly after the report was released in 2022. However, Parliament later voted against proceeding with an impeachment inquiry, effectively removing the immediate consequences of the report.
The dispute was revived earlier this month when the Constitutional Court declared part of Parliament’s impeachment rules unconstitutional and ordered that the panel report be referred to an impeachment committee.
Ramaphosa says that development means the report once again has direct legal consequences, making it necessary for the courts to determine whether it was lawfully produced.
He is asking the High Court to declare the report unlawful and invalid before it can be used as the foundation for any future impeachment proceedings.
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