President Cyril Ramaphosa appears to believe his word should carry more weight than the evidence against him, a Western Cape High Court judge said on Wednesday.
Judge André le Grange made the remark while questioning the president’s advocate in Ramaphosa’s urgent bid to stop Parliament’s impeachment committee from beginning its inquiry into the theft of US dollars from his Limpopo farm, Phala Phala, in 2020.
The matter is before a full bench comprising Le Grange and judges Matthew Francis and Diane Davis.
“I am getting the impression, sitting here, that the president thinks that, listen here, my evidence [that] I give must weigh heavier than all this, as he terms it, hearsay evidence from his accusers,” Le Grange said.
Advocate Wim Trengove SC, for the president, said Ramaphosa’s indignation at being “confronted by evidence of undisclosed origin” was an understandable human reaction.
However, he said that was not his argument.
“I’m not suggesting that his evidence should count more than the incriminating evidence,” Trengove said.
“But what I am suggesting is that the panel owed it to him under the rules, at least to have regard to his evidence, and, in the light of his evidence, to say, well, is there enough to take the momentous step of going to a public inquiry.”
The inquiry could ultimately lead to a National Assembly vote on the president’s removal from office.
Ramaphosa seeks to pause impeachment process
Ramaphosa wants the impeachment process put on hold until the same court decides his separate application to review and set aside the report of the independent panel chaired by former chief justice Sandile Ngcobo.
That review is set down for September 2 to 4.
The panel found in November 2022 that the president had a prima facie case to answer over the theft.
The application is opposed by impeachment committee chairperson Makashule Gana, the ATM, which brought the original impeachment motion against the president, the EFF and the MK Party.
National Assembly Speaker Thoko Didiza, the first respondent, filed a notice indicating that she would abide by the court’s decision.
“The Speaker has therefore filed to abide, and the court will clarify the matter,” Didiza said previously, adding that Parliament’s rules prevented her from interfering in the committee’s work.
The impeachment committee was established after the Constitutional Court ruled in May that Parliament’s December 2022 vote to reject the panel’s report was irrational and unconstitutional.
The apex court ordered that the report be referred to an impeachment committee.
Debate over the legal test
Trengove told the court the Ngcobo panel asked itself the wrong question when it found the president had a case to answer.
He argued that the panel wrongly applied the test of prima facie evidence instead of asking whether there was sufficient evidence to justify a public inquiry against a sitting president.
“If that is the question you ask, then the outcome is inevitable, because the Speaker had already determined that there is a prima facie case,” he said.
“It asked itself the wrong question.”
Trengove also rejected the MK Party’s allegation that the president was guilty of an abuse of process.
He said the party’s case lacked factual support, describing it as bluster, insult and unfounded argument.
According to Trengove, the president had dismissed and denied the allegation in his replying papers and the claim was not underpinned by any evidence.
He further argued that the impeachment rules were designed not only to hold the president accountable, but also to protect him from the punitive consequences of a public inquiry where there was no justification for one.
He said a prima facie case is determined by considering only the accuser’s evidence, without weighing it against the president’s response.
“You ask yourself, is there evidence which, if believed, would constitute a case of misconduct? That is what a prima facie case is,” he said.
“But the panel isn’t going to receive only the accuser’s documents, which have already been certified as establishing a prima facie case, but also other input from MPs and, importantly, the president’s own response to those complaints.”
Trengove cited two complaints against the president as examples: that he had engaged in “other paid work” in breach of the Constitution and that he had failed to report the theft under Section 34 of the Prevention and Combating of Corrupt Activities Act.
He said the panel reached conclusions on both allegations purely on a prima facie basis.
Trengove added that the rules also required a case that the president had acted in bad faith.
“Serious misconduct means unlawful, dishonest, or improper behaviour performed by the president in bad faith,” he said.
“A serious violation of the Constitution or the law means behaviour by the president amounting to an intentional or malicious violation.”
Judges probe Ramaphosa’s argument
One of the judges questioned whether that assessment was the panel’s responsibility at all.
“Isn’t that really, that determination, doesn’t it lie with the impeachment committee to decide that, and not the panel?” the judge asked.
Another judge challenged Trengove’s central argument by referring to paragraph 141 of the Constitutional Court’s May 8 judgment, in which the chief justice outlined the panel’s role.
“The panel must go and enquire whether there is sufficient evidence to establish whether there is a prima facie case for the president to answer,” the judge said.
Trengove described the passage as a passing remark.
The judge disagreed.
“Is it a passing remark? If you read it in context, it can hardly be a passing remark,” the judge said.
The bench also questioned what role would remain for the impeachment committee if the panel were required to apply a higher legal test.
“If the panel comes up and says, well, there is sufficient evidence against you to answer a case, and it’s not prima facie, then it means that the impeachment committee can just follow it,” the judge said.
“They don’t have to do anything else, because then the president is sort of guilty.”
Trengove maintained that the panel worked with limited evidence, namely the complaint and information placed before it by MPs, and that its function was not to determine guilt.
“The panel calls it a momentous step to start an impeachment hearing against the president,” he said.
“Is there sufficient evidence to embark on such a momentous step? And that means you don’t merely ask whether there is prima facie evidence.”
Delay and accountability arguments
Trengove rejected claims that the president’s application was an attempt to evade accountability, describing those allegations as baseless and politically motivated.
He argued that the president could not be blamed for delays in the matter.
According to Trengove, the panel’s report was delivered in November 2022 and the Constitutional Court dismissed direct access applications by both the president and the EFF in March 2023.
“And then nothing happened for almost a year until the EFF launched their application to the Constitutional Court,” he said.
“So these other parties who complain about delay today are the EFF, who delayed for almost a year, and then all the other parties who did nothing for three and a half years.”
Trengove said the president was seeking only a limited postponement of the process.
“The scope of the interdict he seeks is limited to the commencement of the public hearings,” he said.
“So that is a very limited duration of a stay that the president seeks.”
A judge pointed out that the delay could extend much longer if the president appealed an unfavourable review judgment.
Trengove said any appeal would be governed by the Superior Courts Act and would be a matter for the relevant court to decide.
“This court’s order will expire when this court gives judgment in the review,” he said.
“My client hopes that he is going to win and will not require any further support.”
Opposing parties and jurisdiction
Advocate William Mokhare SC, for Gana, is currently presenting his argument.
Outside court, MK Party deputy president John Hlophe said the president was wasting the court’s time.
“We submit Ramaphosa is wasting time. You cannot interdict an inquiry which has already been directed by the apex court,” Hlophe said.
“Once the Constitutional Court has made a ruling, there is no further appeal. There is no other court with competent jurisdiction to entertain the matter.”
Advocate Anton Katz SC appeared for the ATM, advocate Mfesane Ka-Siboto for the EFF and advocate Dali Mpofu SC for the MK Party.
Before considering the merits of the case, the court had to determine whether the application was urgent.
It also had to decide whether the High Court had jurisdiction to grant the relief sought in light of the Constitutional Court’s order.
According to a joint practice note filed by the parties, the second, sixth and seventh respondents argued that the court had “no jurisdiction to grant the relief sought in breach of the order which undermines and/or contradicts a binding decision of the Constitutional Court”.
The fourth, sixth and seventh respondents also contended that the application was an “abuse of process, frivolous or vexatious”.
The respondents are seeking costs against the president, with the sixth and seventh respondents requesting a punitive costs order.
