Section 89 report ‘flawed, mandate misunderstood’, Ramaphosa tells ConCourt

Parliament’s Section 89 expert panel failed to carry out its mandate, produced a flawed report and failed to establish whether confidential information put before it as evidence was legally obtained by former spy boss Arthur Fraser.

This is President Cyril Ramaphosa’s submission to the Constitutional Court as he seeks to have the damning Phala Phala report, which found that he may have broken his oath of office, reviewed and set aside.

The application came at the back of his party’s marathon meetings to contain the Phala Phala fallout, while his foes gun for his blood, insisting that he resign.

“This application does not come easily. I have carefully considered the report and respectfully submit that the process followed by the Panel and its conclusions are seriously flawed, thus making the recommendations irrational.

“In summary, I submit that the Panel misconceived its mandate, misjudged the information placed before it and misinterpreted the four charges advanced against me. It moreover strayed beyond the four charges and considered matters not properly before it,” Ramaphosa said in his affidavit.

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Fraser’s ‘unlawful information’

He sternly questioned the legality of the information before the panel, including that from the Namibian police, said to be confidential.

The panel failed to test the legality of the evidence, said the President.

“The Panel did not apply any of these mandatory provisions. It did not appreciate the default rule that hearsay evidence must be excluded, and can only be admitted in certain defined circumstances.

“As a result, the Panel made conclusions, based on hearsay statements, without regard to the law. Save for the limited evidence I introduced in my response, there was no evidence before the Panel.”

Fraser’s statement to the Public Protector included a “confidential report” by the Namibian police pertaining to the alleged burglar, Namibian national David lmanuwela.

The former prisons commissioner rocked Ramaphosa’s boat earlier this year when he laid criminal charges against him and his presidential protection unit head Major-General Walther “Wally” Rhoode

Fraser alleged that, among other things, Rhoode, Ramaphosa’s political adviser, Bejani Chauke and private investigator Paul O’Sullivan were involved in the alleged cover-up of the February 2020 theft at the president’s farm.

According to Ramaphosa, questions remained as to whether Fraser acquired the information lawfully.

“Mr Fraser should have explained this. The Panel had a duty to ensure that any evidence before it is lawfully obtained, or exclude it. It is likely that the Namibian report, if it is at all legitimate, landed in Mr Fraser’s hands unlawfully,” he added.

‘I am not doing other paid work’

He denied that he undertook “other paid work” through the breeding and selling of game at his Phala Phala farm in Limpopo.

He argued that he declared all his interests to Parliament.

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According to the report, Ramaphosa was doing paid work aside from running the country and contravened section 96(2) of the Constitution. He said he was the sole member of a closed corporation which carries on the farm business and did not undertake any work in exchange for payment.

“I submit that its interpretation was mistaken for the following reasons- the prohibition provides that a member of Cabinet may not ‘undertake any other paid work”.

“Its language is plain. A member of the Cabinet may not do other work for which he or she is paid. I did not do any other work and I was certainly not paid for anything of the kind.

“The Panel’s interpretation of the prohibition, to extend to all business interests, is thus incompatible with its language and its purpose.”

‘I didn’t contravene PRECCA’

Regarding his alleged contravention of the Prevention and Combating of Corrupt Activities Act (PRECCA), which requires that crimes and any corrupt transactions be reported to police, the beleaguered President said he did not know about the burglary and theft until he was informed about it by Mr Ndlovu.

“Where a separate management team is responsible for the running of the operations it is, therefore, that management team that holds the position of authority.

“As I have always maintained, I am the sole member of Ntaba Nyoni but I do not run Phala Phala. It has a management team, and I didn’t know about the theft until I was informed by Mr Ndlovu.”

Furthermore, said Ramaphosa, he was not duty bound to report the incident as he had already reported it to Rhoode and assumed “he would do whatever needed to be done.”

He is adamant that he acted in good faith, even though the panel “did not inquire into the question whether I had acted in bad faith.”

The application lists five respondents – the three-member independent panel led by retired chief justice Sandile Ngcobo, Gauteng Judge Thokozile Masipa and Advocate Mahlape Sello, SC.

The fourth respondent is National Assembly Speaker Nosiviwe Mapisa-Nqakula, while African Transformation Movement (ATM) leader Vuyo Zungula, who spearheaded the charge to have Phala Phala scandal investigated, is listed as the fifth respondent.

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