Ramaphosa cites schoolboy suspension case as part of bid to set aside Phala Phala report

President Cyril Ramaphosa has asked the Western Cape High Court to set aside the independent panel report that triggered his Phala Phala impeachment inquiry, and his legal team has relied in part on a court judgment about a suspended schoolboy to argue the application is not premature.

Who brought the challenge and why

Ramaphosa’s application seeks to review and set aside the Section 89 independent panel’s report, which in November 2022 found there was enough evidence for him to face four impeachment charges related to the theft of about US$580,000 in cash from his Phala Phala farm. The panel, chaired by former chief justice Sandile Ngcobo, required the National Assembly to hold a public impeachment inquiry.

Legal argument: the schoolboy suspension precedent

Advocate Wim Trengove SC told a full bench at the Western Cape High Court that a Western Cape High Court judgment about a schoolboy who challenged his suspension supported the argument that Ramaphosa’s court challenge was not premature, even though Parliament’s impeachment inquiry has not concluded.

Trengove described the schoolboy judgment as recognising that a suspension could “seriously affect the pupil’s future, lead to his expulsion and, on its own, cast serious doubt on his fitness to mix with other children.” He contrasted that harm with what a president suffers, saying:

“If that goes for a school pupil, how much more is that to our president, who is publicly shamed, publicly humiliated by a prosecution for serious constitutional misconduct? … If a school child is protected against that class of damage, then all the more is the president entitled. Not to suspension from school, but impeachment as head of state.”

Questions of timing and harm

Opponents of the application, including the ATM represented by Adv Anton Katz SC, argued the court should not intervene in an unfinished parliamentary process unless a party could show that “grave injustice” would result. Katz said Ramaphosa’s papers contained no such claim: “There is not one word on material or irreversible harm that could not be remedied in the founding papers.”

Judge President Nolwazi Mabindla-Boqwana asked Trengove to distinguish the harm already caused by public allegations from the harm of the president standing trial before the impeachment committee. Trengove said there were two harms and that the impeachment hearing was the more serious, describing it as an “insult which causes pain and reputational harm.”

Trengove on the panel’s approach to the charges

On the merits, Trengove argued the panel had asked itself the wrong question on each of the four charges. He said the parliamentary rules permit impeachment only for conduct that is deliberate and in bad faith and that, although the panel recited that threshold in its report, it failed to apply it. “We’re not going to argue on these charges that the panel asked the right questions but gave the wrong answer,” he told the court. “Our argument is a simpler one. They didn’t even ask the question.”

The four charges (as described in court)

• The first charge alleges Ramaphosa breached the ban on members of the executive doing other paid work by running a farming business. Trengove said the farm is held in a trust and run through a close corporation with a manager and staff, that the president has never been paid by it, and that he declared the interest in Parliament’s public register. “The farm is run by a manager and employees. I don’t do work for the farm and I don’t get paid for the farm,” the president has said, according to Trengove.
• The second charge alleges Ramaphosa failed to report the theft to the Hawks as required where more than R500,000 is stolen. Trengove said the president reported the burglary to Major-General Wally Rhoode, head of the Presidential Protection Unit, and expected him to take it further; the panel accepted that as common cause.
• The third charge alleges Ramaphosa had no right to instruct Rhoode to handle security at his private farm because his personal safety was not at risk; Trengove said the charge made no sense and that a break-in and theft at the president’s home on the farm could be a security issue.
• The fourth charge alleges he acted unlawfully by having Rhoode investigate the burglary rather than report it. Trengove said Ramaphosa asked Rhoode to find out what happened and report back, and that Rhoode told the panel he acted on the instructions of the deputy national commissioner.

Parliamentary process and remedies

Katz told the court Ramaphosa’s complaints belonged in Parliament and could be raised at the end of the impeachment process. He argued the impeachment committee could stop its own inquiry if the evidence proved too weak. Mabindla-Boqwana said the parliamentary rules contain no mechanism allowing the committee to terminate an inquiry of its own volition: “So there’s no bailout process at the impeachment committee for the president?” she asked.

Other judges questioned why the president should have to appear before the committee if the four charges were not supported by sufficient evidence. Katz said that answer lay at the end of the impeachment process rather than in a review now.

Background and next steps

The impeachment process began in June 2022 after allegations that millions of dollars had been stolen from the farm and covered up. The National Assembly voted in December 2022 not to proceed with impeachment, but the Constitutional Court set that decision aside on May 8 and ordered the matter referred to Parliament’s impeachment committee.

The impeachment committee has been barred from holding public hearings since July while Ramaphosa’s review application is decided. Arguments in the Western Cape High Court began with Trengove and were expected to continue until Friday.

Argument continues in court.