An impeachment case to answer for Phala Phala saga?

A close look at the rules and some of the evidence submitted to the independent panel probing possibly impeachable conduct by President Cyril Ramaphosa suggests it would not be a surprise if the panel finds there is no case to answer.

The job of the independent panel, chaired by former Chief Justice Sandile Ngcobo, is to determine if there is a case to answer of impeachable conduct. However, its report, now due on November 30, does not bind Parliament one way or another.

What immediately comes to mind when the Phala Phala scandal is mentioned are sensational claims that suggest exchange control contraventions and possible crimes like corruption, money laundering and kidnapping.

But the impeachment motion by ATM MP Vuyo Zungula tabled on October 17 brings much more modest charges: a breach of the constitution in that the president undertook paid work other than his work as president; a failure to report the burglary at his Phala Phala farm to the police; and a conflict of interest arising out of claims that Wally Rhoode, a member of the police’s presidential protection service (PPS), was “directed to” deal with security issues on the farm and that Ramaphosa gave an unlawful instruction to Rhoode to investigate the burglary.

On October 27 — almost a third of the way into the lifespan of the panel — Zungula put in “supplementary evidence”, comprising a whopping five lever-arch files of documents. His accompanying submissions sound more like the sensational Phala Phala claims we know. He said the new evidence showed tax evasion, that Ramaphosa lied about not knowing how much money was stolen, that he acted in bad faith when he suspended public protector Busisiwe Mkhwebane and that Rhoode’s brief from Ramaphosa was “an unlawful cover-up operation irregularly sanctioned at the highest level”.

“All the above amounts to corruption by Mr Ramaphosa in that he abused his position in government and abused state resources for his personal benefit,” said Zungula.

It is doubtful whether the panel may lawfully take much of this supplementary evidence and submissions into account, in terms of the rules that govern its work.

Most presidents of South Africa have acted unlawfully — including Nelson Mandela — and have had their actions set aside by the courts. The rules show that impeachable conduct requires something more: bad faith, malice and intentional conduct on the part of the president

Much of the evidence the panel is considering is not in the public domain, and the rules governing presidential impeachment have not been used before or considered by a court. But on the face of it, they require the panel to consider a preliminary inquiry “relating to a motion” — suggesting that the motion sets the parameters of what the panel may assess. 

The motion that the panel must look at is the motion “referred to it by the Speaker”. 

If the ATM wanted to bring additional charges to lay a basis for impeachment — corruption, tax evasion, the bad faith suspension of Mkhwebane — these would need to go via the Speaker, in terms of the rules.

Parliament’s spokesperson Moloto Mothapo said the submissions of October 27 were “clearly addressed to the panel chair and not the Speaker”.

“It’s clearly their evidence submitted to the panel as per its invitation to all parties,” said Mothapo.

The rules allow MPs to “place relevant written or recorded information before it”. But the information must be relevant; and “relevant” can only mean relevant to what is before it — the original motion.

Some of the supplementary evidence may indeed be relevant to the original motion. But much of it seems not to be. The judgment of the Western Cape High Court setting aside the president’s suspension of Mkhwebane is the most obvious example.

Where does all this leave the panel? First, even if Zungula had brought the strongest evidence of corruption or tax evasion or a bad faith conflict of interest in respect of the suspension of Mkhwebane, this would be outside the panel’s remit. A new impeachment motion would need to be brought and the process begun afresh. Only evidence related to what is inside the panel’s remit would be considered by the panel. The rules say the panel “must limit its enquiry to the relevant written and recorded information”.

Then, the panel would need to assess the relevant evidence against the definitions contained in the rules of “serious misconduct” and “a serious violation of the constitution or the law”.

Serious misconduct is defined as “unlawful, dishonest or improper behaviour performed by the president in bad faith”. A serious violation is defined as “behaviour by the president amounting to an intentional or malicious violation of the constitution or the law performed in bad faith”. These definitions make it clear that not every misstep or unlawful act by a president would be grounds for impeachment.

Most presidents of South Africa have acted unlawfully — including Nelson Mandela — and have had their actions set aside by the courts. The rules show that impeachable conduct requires something more: bad faith, malice and intentional conduct on the part of the president.

So it would not be enough to show, even on a prima facie basis, that the president engaged in paid work. There would have to be evidence that he did so in bad faith and intentionally or maliciously. Zungula says in his supplementary submissions: “Whether or not President Ramaphosa declared his business is immaterial ... because this prohibition does not make any exceptions whatsoever.”

It may be so that a declaration would be immaterial to the question of whether he engaged in paid work. But if, as has been reported, the president had long disclosed his interest in the Phala Phala farm to parliament, it would undermine a conclusion that he acted in bad faith.

The claim that Ramaphosa breached the Prevention and Combating of Corrupt Activities Act (PRECCA) by reporting to Rhoode instead of the Hawks as the South African Police Service Act requires, is potentially more serious. Failing to report is an offence under the act. But it is a tricky one because the requirement is that “a person in authority” who knows of a theft must report it “or cause [it] to be reported to any police official”.

So, if Ramaphosa reported to Rhoode — by all accounts a police official — who reported onwards, it is difficult to see where the breach occurred, particularly to find that he breached the law intentionally or in bad faith. If there was evidence that Ramaphosa told Rhoode not to take it to the Hawks, it may be a different matter.

On the last two charges, Zungula is effectively making a charge of an abuse of power — that Ramaphosa was using his presidential protection service to secure Phala Phala and investigate his private interests. “President Ramaphosa’s life and limb was not threatened by the burglary and thus General Wally Rhoode had no business to be investigating anything at the Phala Phala farm,” said the original motion.

The panel’s finding will likely depend on the facts (was the PPS providing security at the time of the burglary?) and whether what was done by Rhoode fell within the legal remit of the PPS. To the extent that the panel finds there were breaches of the law, these would still need to have been made by Ramaphosa personally and in bad faith to constitute prima facie grounds for impeachment.

There are red flags raised by some of the evidence submitted by ATM: the fact that the Reserve Bank is looking into the origins of the foreign currency that was stolen from the farm, the murkiness around the police investigation, the sheer amount of cash hidden under sofa cushions.

These are being investigated elsewhere — by the Hawks, by the South African Reserve Bank and by the public protector — and these investigations may uncover impeachable conduct on the part of the president. But at this point, the motion seems a shaky one.