News24 | Phala Phala: Even if Ramaphosa was wrong, he did not act in bad faith, counsel tells court

Advocates Wim Trengove for President Cyril Ramaphosa, and Dali Mpofu for the MK Party exchange pleasantries at the urgent interdict application in the Western Cape High Court on 15 July.

Gallo Images/ER Lombard

• President Cyril Ramaphosa’s counsel argued in the Western Cape High Court that the independent panel failed to assess whether he acted in bad faith regarding Phala Phala.
• Ramaphosa seeks to overturn the panel’s report, claiming it applied the wrong evidentiary standard and misinterpreted its mandate.
• The impeachment inquiry’s public hearings, revived by the Constitutional Court in May, are on hold, pending the outcome of this review, with hearings continuing until Friday.
• For more political news, visit News24 Politics.

The independent panel that found President Cyril Ramaphosa had a case to answer for Phala Phala did not consider whether Ramaphosa acted in bad faith, his counsel argued in the Western Cape High Court on Wednesday.

“The president believes he acted correctly, but if he misunderstood a section, he did so in good faith,” argued Advocate Wim Trengove, SC, before a full Bench consisting of Western Cape Judge President Nolwazi Mabindla-Boqwana, and judges Mark Sher and Ncumisa Mayosi.

On 8 May, the Constitutional Court revived the impeachment inquiry into Ramaphosa over the Phala Phala case. The apex court ruled that the National Assembly acted unlawfully when it voted, mostly ANC MPs, against adopting the independent panel’s report in December 2022.

The court ordered that the report, which found a prima facie case that Ramaphosa may have committed serious misconduct and violated the Constitution, be referred to an Impeachment Committee for a full inquiry.

After that ruling, Ramaphosa approached the court to seek to have this report set aside. Should he succeed, it will be the end of this impeachment process, though the ruling is likely to be appealed no matter the outcome.

Ramaphosa argued that the panel applied the wrong evidentiary standard. National Assembly Rule 129G(1)(b) requires the panel to determine whether “sufficient evidence” exists that the president committed a serious violation or serious misconduct – a higher threshold than the mere prima facie standard needed to trigger panel appointment.

READ | Three months of Impeachment Committee: Are filibuster allegations opposition bluster?

In his heads of argument, Trengove contended that the panel conflated these two tiers, finding only a prima facie case when the rules required more.

He expanded on this argument for much of the morning sessions.

Trengove said a finding that the president had a prima facie case to answer did not mean there was sufficient evidence to subject him to an impeachment inquiry.

He argued that impeachment charges were brought by the president’s political enemies – “people committed in the struggle against the president” – and that the independent panel should serve as a filtering mechanism to prevent unjustified accusations from making it to impeachment inquiries.

Trengove said:

They are not people seeking justice; they are people waging a political war.

Ramaphosa’s second ground of review is that the panel overlooked the bad-faith requirement embedded in the National Assembly rules’ definitions of “serious misconduct” and “serious violation.” Both are defined as conduct performed in bad faith – intentionally or maliciously.

The panel made no finding on whether Ramaphosa acted in bad faith, despite his consistent pleas of good faith.

Third, he argued the panel misconceived its mandate, misinterpreted the four charges, and strayed beyond them to consider matters not properly before it.

The Constitutional Court’s May judgment was confined to how Parliament responded to the panel report. It did not pronounce on whether the report itself was lawful.

On 24 July, the Western Cape High Court granted Ramaphosa an interdict, prohibiting the Impeachment Committee from conducting public hearings pending this review application.

The Constitutional Court refused leave to appeal that interdict on 12 August, leaving the review to run its course.

The ATM, EFF, MK Party, and UAT are opposing Ramaphosa’s application, which will be heard until Friday afternoon.

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