Ramaphosa’s fight back could pick apart Phala Phala panel’s ‘irrational’ errors

Cyril Ramaphosa has never fought back against his enemies, only turning the other cheek to take more punches – but this time they might see his bare knuckles as he launches a rear-guard action to prevent being forced to resign as president of the country and ANC, and against being impeached.

His first line of defence will be legal action to tackle what a legal expert calls the section 89 panel’s “irrational conclusions”.

The president abandoned his first thoughts about resigning after the panel released its findings last Thursday and instead, fight back as he believed he had a strong and winnable case due to the poor manner in which the panel investigated the matter and made findings.

The section 89 independent panel, chaired by former chief justice Sandile Ngcobo, found the president has a case to answer on the Phala Phala saga.

Also Read: How Section 89 works

Questions of impartiality

Ngcobo, who was appointed by then president Jacob Zuma as chief justice over deputy chief justice Dikgang Moseneke, was seen in political circles as a Zuma proxy, especially considering regular “dissenting” opinions that favoured the former president in the Constitutional Court.

National Assembly speaker Nosiviwe Mapisa-Nqakula was criticised by the Ramaphosa faction for choosing Ngcobo to head up the investigation.

Ramaphosa’s supporters pressured him to challenge the report and he has accepted their suggestion.

They believe he should not take the panel’s findings lying down because this had profound implications for the country, the public and the president himself and was “therefore a matter of significant public interest”.

Earlier he had decided to step down but was now determined to take the report head on to clear his name, even if he decided to quit later.

Conclusions based on hearsay

In his challenge, Ramaphosa identified a number of loopholes in the report including the fact that its conclusions were based on hearsay and not concrete evidence.

Even though Ramaphosa has chosen the legal route, parliament is going ahead with its plan to vote tomorrow, either to impeach or ignore the report.

“The president has a choice to take on judicial review the report of the independent panel on the basis that the conclusions made therein are not rational,” said advocate Modidima Mannya, a legal expert.

“He may rely on both the procedural irregularities and substantive irrationality of the findings.”

Also Read: Cope backs Ramaphosa, fears state capture report will be ‘thrown out the window’

Among the key issues he may rely on is the incorrect application of the hearsay evidence rule, the use of unverified and inadmissible information, the incorrect application of section 34 and the fact that the panel may have not had the jurisdiction to investigate the allegations of him doing paid work as the matter falls within section 3(1) of the Members Ethics Act.

He said section 3(1) confers the jurisdiction on the public protector.

“Allied to this is the fact that the public protector is investigating the matter.

Why was Calland replaced?

The president may also wish to raise the issue of the removal of Professor [Richard] Calland and his replacement on the basis that criteria applied to remove Calland also applied to his replacement.”

Calland, a law professor from the University of Cape Town, was removed from the panel after the Democratic Alliance said his political commentaries gave the perception of bias towards the president. He had been nominated by Good Party to serve on the panel.

Mapisa-Nqakula, who sought legal advice on the matter, agreed to remove the professor from the panel but stressed there existed no factual basis to corroborate any perceived or apprehension of bias involving Calland.

Her decision to exclude Calland, a progressive academic and researcher, only considered the need for integrity of the work of the panel.

Leave it up to the National Assembly?

Mannya said Ramaphosa had other avenues he could exploit.

“The other option is to allow the National Assembly to debate the matter and take a decision.

“If the National Assembly adopts the report with all the identified flaws, he will have additional grounds of review. If the National Assembly does not adopt the report because of the flaws, the matter cannot move to the next stage,” Mannya said.

The expert argued the fact the National Assembly is not bound by the findings and recommendations of the panel did not mean it could simply ignore the report.

Within the ANC, there was concern that the timing of the report’s release would worsen the existing divisions within the party especially as it was heading for a highly contested national conference.

Rules of evidence ignored

Ramaphosa was provided with legal advice that the panel appeared first to have acted without the full set of information (evidence) to make its conclusions.

The advice said: “More concerning is the fact that the panel for whatever reason clearly ignored the fundamental rules of evidence.

Also Read: Call for secret ballot when Parliament votes on Phala Phala report

“To the extent that the panel accepted both the president and [former State Security Agency boss Arthur] Fraser provided information based on hearsay, such information ought to have been ignored and/or the panel ought not to have relied thereon at all.

“The panel has expressly stated information provided could not be verified.

“It is inconceivable the panel relied on unverified information.”

– ericn@citizen.co.za