Johannesburg - President Cyril Ramaphosa says the EFF has no business getting involved in his Constitutional Court application to review and set aside Parliament’s independent panel report on Phala Phala, but the red berets insist they have to hold Ramaphosa accountable.
The EFF, which had not been joined as one of the primary respondents in Ramaphosa's application, seeks leave to oppose the court bid, citing “a manifest, clear and direct substantial interest in the relief sought”.
After seeking consensus from Ramaphosa’s lawyers that he would not oppose the EFF’s participation, his lawyers said: “Your letter does not set out any basis for contending that the EFF has a material legal interest, entitling it to be a party to the application. The case is against Parliament and the Section 89 Panel.”
Undeterred, EFF deputy president Floyd Shivambu said in court papers on Tuesday Ramaphosa’s response was “mistaken”.
“The EFF has a pre-eminent constitutional duty to hold the President and other members of the national executive accountable … based on well-publicised allegations of a serious breach of the Constitution, a series of violations of the law and unethical conduct arising from the so-called Phala Phala scandal,” reads his submission.
Shivambu said Ramaphosa was running to court “to avoid the type of accountability the EFF is entitled to ensure that it takes place”. “Thus far, the President has refused to properly and fully account for his conduct in the Phala Phala saga.”
He said Ramaphosa “has claimed that the allegations relating to the Phala Phala saga are still under investigation by law enforcement agents and the Public Protector and those investigations have not been completed and that based on the legal advice he received he was not willing to publicly and fully respond to allegations against him”.
Notwithstanding that attitude, he said, Ramaphosa presented a response to the allegations against him to the Section 89 investigation.
“The Panel reported on that response and concluded that it did not sufficiently address the allegations against the President. The EFF is therefore entitled to ensure that the National Assembly is entitled to pursue accountability on the part of the President based on the findings and recommendations of the panel,” he said.
At least four other organs of state were investigating the alleged theft in 2020 of millions of US dollars hidden in a leather couch at Ramaphosa’s Phala Phala game farm in Bela Bela in Limpopo. Ramaphosa never reported the theft to the police, and instead, his allies used state resources to pursue the alleged thieves, resulting in allegations of torture and kidnapping.
In his defence, Ramaphosa told the Parliamentary Independent Panel, led by retired chief justice Sandile Ngcobo and established under Section 89 of the Constitution, that the money was proceeds for the sale of buffaloes to a foreign businessman who never returned to collect his beasts.
More than two months after the transaction, the money was stolen before it was banked, suggesting that neither the SA Reserve Bank nor the SA Revenue Services had knowledge of the Christmas Day transaction in foreign currency, which is illegal.
The alleged crimes only came to light last year in June after former spy chief Arthur Fraser opened a case of money laundering, kidnapping and torture against Ramaphosa and the head of his bodyguards, Major General Wally Rhoode.
Following its investigation, the panel found that Ramaphosa’s explanation was satisfactory and recommended that the National Assembly initiate the process to hold him accountable - which could have led to his impeachment from office.
However, the governing ANC used its majority in parliament to block Ramaphosa from facing scrutiny and outvoted the opposition in the motion to adopt the panel report. In his affidavit before the Constitutional Court, Shivambu said the EFF owed a responsibility to the South Africans that voted the party into public office to ensure that Ramaphosa did not conduct himself in a manner that undermined, abused and/or compromised state institutions such as the SA Reserve Bank, the SA Revenue Service and Ramaphosa's bodyguards.
He said Ramaphosa’s application was misplaced because “our judiciary's powers are curtailed by the separation of powers principle which holds that it must place due deference to other branches of government, the National Assembly in this instance”.
“This is more so in instances where the impugned conduct or decision lends itself to, and gives birth to, a polycentric process. This is the case in this application in that the impeachment process is infused by at least legal and political considerations”.
He said Ramaphosa had an opportunity to persuade the National Assembly and the Impeachment Committee not to pursue and/or recommend his removal from office. He may do so with legal representation or other expertise.
He continued: “As will be recorded below, there are other steps and decisions to be made that could well lead to the President not being impeached. All this speaks to the infancy of the process that could hardly render the Report ripe for reviewing”.
Shivambu said Ramaphosa ought to show that no reasonable person could have reached the same conclusion as the Section 89 panel and “with respect, the President has not discharged that onus”.
“It must be borne in mind that the Panel was not tasked with reaching a "judicial and/or scientific decision. Its task was humble. On its interpretation, the Panel has determined that the test is set at prima facie standard in order to advise the National Assembly as to whether it should look further into the allegations.”