Advocate Anton Katz SC
Image: FILE
The ATM fired a legal broadside at President Cyril Ramaphosa in the Western Cape High Court on Wednesday, arguing that his bid to have the Section 89 panel report set aside is premature and should be dismissed.
Advocate Anton Katz SC, for the ATM and its leader Vuyolwethu Zungula, said the courts should not step in while Parliament was still dealing with the impeachment charges against Ramaphosa unless there was a compelling reason to do so.
He said there was no such reason in Ramaphosa’s case.
"There is not one word on material or irreversible harm that could not be remedied in the founding papers," he said.
"Not one word."
Ramaphosa asked the court to set aside the report of the Section 89 independent panel, which found in November 2022 that there was sufficient evidence for him to answer four impeachment charges arising from the theft of foreign currency, worth about US$580,000, at his Phala Phala game farm in Limpopo in February 2020.
The panel, chaired by former chief justice Sandile Ngcobo, found that Ramaphosa should face a public impeachment inquiry on the charges.
The National Assembly voted in December 2022 not to proceed with the impeachment process.
On May 8, the Constitutional Court set that decision aside and ordered the report to be referred to Parliament’s impeachment committee, reopening the matter more than three years later.
The process began in June 2022 when former State Security Agency boss Arthur Fraser told police that millions of dollars had been stolen from the farm and that the theft had been covered up.
Zungula relied on those allegations when he moved for Ramaphosa’s impeachment in the National Assembly.
The impeachment committee was then barred by the same court in July from holding public hearings until Ramaphosa’s review application was decided.
The matter is being heard by a full bench of Judge President Nolwazi Mabindla-Boqwana, Judge Mark Sher and Judge Ncumisa Mayosi.
Arguments are expected to continue until Friday.
Katz said Ramaphosa should raise his complaints about the panel in Parliament once the impeachment process was over, rather than asking the court to deal with them now.
"What's our course? Mr Zungula goes to the speaker," he said.
"The course is the National Assembly deals with it, end of the line of this multistage process.
"It's not bit by bit by bit. That's our submission."
He said Ramaphosa was not without a remedy, as the impeachment committee could stop the inquiry if the evidence was too weak to support the charges.
"If the president has a grievance about the fact that the panel got it wrong, what should he do? Not come here," Katz said.
Mabindla-Boqwana told him the parliamentary rules contained no such escape route.
"So, there's no bailout process at the impeachment committee for the president?" she asked.
"The rules don't allow that, Mr Katz.
"The rules suggest that the impeachment committee must have the inquiry and must report to Parliament. It can't terminate an inquiry of its own volition."
Katz said the committee would not continue with a full hearing if it became clear that the evidence could not support the charges.
Sher asked why Ramaphosa should have to appear before the committee if the four charges identified by the panel were not supported by sufficient evidence.
"No one would say that you're entitled to convict a man of robbery if he hasn't been charged," Sher said.
"Exactly the same goes for this.
"Why should the president have to go to an impeachment hearing, as the head of the state, with all his responsibilities, if on the current four charges there wasn't sufficient evidence?"
Katz accepted that the committee could only deal with the four charges, but said Ramaphosa should wait until the impeachment process was over before challenging the panel’s findings in court.
Mayosi asked why Ramaphosa should face an impeachment hearing at all if there was not enough evidence to support the charges, which was what the panel had been asked to determine.
Mabindla-Boqwana said the Constitution required the president to promote the unity of the country and that an impeachment had implications for the country as a whole.
"So, whatever happens to the president does not only affect him as a person and his office," she said.
"It has an impact as to what occurs within the country."
Katz said the separation of powers barred a court from examining how the National Assembly holds the executive to account, and cited the Nkandla judgment of former chief justice Mogoeng Mogoeng.
"It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action," he said.
"The parliamentary process would be paralysed if Parliament were to spend its time defending its process in the courts."
Ramaphosa’s advocate, Wim Trengove SC, argued that the panel had asked itself the wrong question and that its report was therefore invalid.
The parliamentary rules allow a president to be impeached only for conduct that is deliberate and in bad faith.
Trengove said the panel had stated that requirement in its report but had not applied it to any of the four charges.
He also argued that the rules required the panel to find sufficient evidence for an impeachment hearing.
Instead, he said, the panel had asked whether there was a prima facie case, which he described as a much lower test that focuses on incriminating evidence without properly considering evidence in the president’s favour.
The panel had set out Ramaphosa's response to the allegations but had not weighed it against them, Trengove said.
Those allegations came from Fraser, whose statement to police in June 2022 set the impeachment process in motion.
He asked the court to set aside the entire report, arguing that if one of the four charges was defective, the whole report was invalid.
Ramaphosa has denied wrongdoing throughout and says the foreign currency was the proceeds of a game sale.
Katz will argue the merits of the panel report on Thursday, and said his team would show the criticisms made of it hold no water.
IOL
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