Cyril Ramaphosa opts not to challenge ‘moot’ section 89 report on Phala Phala saga

President Cyril Ramaphosa will no longer legally challenge the section 89 panel’s report, which found he may have a case to answer about the Phala Phala saga, saying the matter was moot after a vote by the National Assembly not to proceed with an impeachment inquiry.

Presidential spokesperson Vincent Magwenya said Ramaphosa still believed the report was flawed and reserved the right to challenge it.

“The president has been advised, which advice he has accepted, that the panel report and all issues associated with it have become moot and they are of no practical and legal consequence because on December 13 2022, the National Assembly decided to reject the motion to refer the panel report to an impeachment committee,” said Magwenya on Monday.

“While that decision remains valid, the section 89 panel report carries no weight in law.”

Magwenya said Ramaphosa had thus been advised not to institute proceedings before the high court for the review and setting aside of the panel’s report at this stage.

The president maintained his position set out in his founding affidavit before the Constitutional Court that the panel report was reviewable in law on several grounds, including in the misconception of its mandate, the grave errors of law and unfounded conclusions of fact, said Magwenya.

He said the president noted the decision taken by the Constitutional Court dated March 1, in which the court decided not to engage the merits of the application that he instituted to set aside the report of the independent panel.

In the first part of the president’s review application, he sought leave to bring the case directly to the Constitutional Court because it was, according to the advice he received, a matter that fell within its exclusive jurisdiction and in the interest of justice.

In the second part, he asked that the report of the panel be reviewed, declared unlawful and set aside.

The Constitutional Court’s decision was on grounds that the application was not within the court’s exclusive jurisdiction and no compelling case for direct access was made.

In seeking to set aside the report, Ramaphosa went to the Constitutional Court on the basis that his application was within its exclusive jurisdiction. He said this was because when the independent panel was conducting its preliminary inquiry, it was fulfilling a constitutional obligation of parliament. In terms of the constitution, only the apex court may decide whether parliament had failed to fulfil a constitutional obligation, he said.

Alternatively, he argued that it was in the interests of justice to be granted direct access to the highest court. The panel’s report was the result of a preliminary inquiry into evidence put forward in the impeachment motion by opposition party ATM and to determine whether the evidence showed a prima facie case of impeachable conduct.

After its preliminary investigation, the panel recommended that the information before it had disclosed “prima facie that the president may have committed a serious violation” of the constitution and the law.

The possible constitutional violations were the prohibitions on members of the cabinet undertaking paid work other than their government work, on cabinet members risking a conflict of interest between their official and private interests and acting in a way that is inconsistent with their office.

The possible violation of the law was about the duty, under the Prevention and Combating of Corrupt Activities Act, to report the theft of money at his farm to the Hawks. He had instead reported it to the head of his presidential protection unit.

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