Ramaphosa attacks impeachment panel’s legal test as Zungula accuses him of abusing courts

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President Cyril Ramaphosa has relied on the strength of the section 89 panel report in his application for an interdict against Parliament, arguing that the independent panel that recommended an impeachment inquiry fundamentally misunderstood its constitutional mandate and applied the wrong legal test when assessing allegations arising from the Phala Phala scandal.In papers before the Western Cape high court, Ramaphosa contends that the panel’s role was not to determine whether he had a “case to answer” but whether there was sufficient evidence that he had committed an impeachable offence as contemplated by section 89 of the constitution.The application seeks an order preventing the National Assembly and the newly established impeachment committee from proceeding with an inquiry until the courts have ruled on a separate review application challenging the panel’s findings.ATM parliamentary leader Vuyo Zungula has emerged as the first respondent to file an opposing affidavit, accusing the president of abusing court processes in a bid to halt parliamentary impeachment proceedings.In answering papers filed on Wednesday, Zungula argues that Ramaphosa has failed to meet the requirements for an urgent interdict and is attempting to shield himself from parliamentary accountability.“The president created his own urgency,” Zungula states in the affidavit, arguing that Ramaphosa waited more than a month after the Constitutional Court’s judgment before approaching the high court, yet demanded that respondents file answering papers within days and sought an urgent hearing.Zungula says there is no basis for urgency because Ramaphosa’s review application challenging the findings of parliament’s section 89 independent panel is already scheduled to be heard in September.“If the president succeeds in the review, the impeachment process will fall away. If he does not, the committee can continue its work. There is therefore no justification for extraordinary relief,” Zungula argues.At the centre of Ramaphosa’s case is the argument that the panel misunderstood the threshold it was required to apply.According to the president, the National Assembly rules require a panel to determine whether sufficient evidence exists that a president committed a serious violation of the constitution or the law, serious misconduct, or is unable to perform the functions of office. Ramaphosa argues that the panel instead adopted a lower standard, asking whether there was a prima facie case against him and whether unanswered questions remained.Ramaphosa says this distinction is critical because impeachment is one of the most drastic powers available to Parliament.In the affidavit, he argues that there must be “sufficient evidence” before Parliament embarks on what he describes as a grave constitutional process that could ultimately remove a sitting president from office.The panel did not inquire into my bad faith at all. It could not rationally conclude that there is sufficient evidence of my alleged misconduct without making any assessment of whether I had acted in bad faith— Cyril Ramaphosa's affidavitThe president further contends that the panel blurred the distinction between “information” and “evidence”, treating allegations and untested material as though they were evidence capable of sustaining an impeachment inquiry.“According to rule 129(1), the panel is to consist of people who collectively possess the necessary legal competence and experience. I submit that part of the mandate of the panel is that it must sift through information provided to it and determine which part of it constitutes admissible evidence against the president. The panel did not do this.“The panel’s fourth misunderstanding of its mandate was that it overlooked the fact that serious misconduct and a serious violation of the constitution or the law, as defined in the rules of the National Assembly, are confined to deliberate misconduct by the president acting in bad faith.“The panel did not inquire into my bad faith at all. It could not rationally conclude that there is sufficient evidence of my alleged misconduct without making any assessment of whether I had acted in bad faith. It failed to make any such assessment or finding,” Ramaphosa said. He argues that this approach allowed the panel to rely on claims that had never been tested through cross-examination or subjected to ordinary evidentiary standards.Zungula defended the findings of Parliament’s section 89 panel, which found prima facie evidence that Ramaphosa may have committed serious misconduct and violated the Constitution.He disputes Ramaphosa’s claim that the panel failed to consider whether he acted intentionally, pointing to findings that the decision not to report the Phala Phala theft to police and the manner in which the matter was investigated were deliberate.“It was not the case that the panel left open the question regarding the president’s motives,” Zungula says. “The panel did not find that the president’s conduct was unintentional. It found that he acted in a deliberate manner.”Ramaphosa’s application forms part of a broader legal challenge to the panel’s November 2022 report on the theft of foreign currency from Ramaphosa’s Phala Phala game farm.The report found there was sufficient evidence for the National Assembly to consider whether the president may have committed serious violations of the constitution and the law.Ramaphosa’s review seeks to have those findings set aside.In the urgent application, the president warns that allowing the impeachment committee to proceed before the review is heard would create significant legal and constitutional complications.His lawyers argue that the committee would effectively be required to investigate allegations based on findings that may later be declared unlawful.The court papers also place considerable emphasis on the Constitutional Court’s judgment that reshaped Parliament’s impeachment rules.Ramaphosa contends that allowing the committee to continue would expose him to reputational harm through allegations made under parliamentary privilege.Zungula rejects this argument, saying no constitutional office-bearer has a right to be shielded from an impeachment process.He argues that Ramaphosa’s dignity and reputation cannot constitute irreparable harm because the allegations surrounding Phala Phala have been in the public domain for years and the president has repeatedly maintained that he acted lawfully and has nothing to hide.“Allowing the committee to fulfil its functions does not undermine the president’s dignity or reputation. On the contrary, it presents an opportunity for the president to protect his reputation and dignity by taking South Africans into his confidence,” Zungula says.He further contends that granting the interdict would undermine parliament’s constitutional oversight role and could effectively prevent any meaningful accountability process from taking place this year.Ramaphosa notes that the Constitutional Court created a two-stage process. First a preliminary assessment by an independent panel and then, where sufficient evidence exists, a full impeachment inquiry by a parliamentary committee.The president argues that the panel therefore performs a critical gatekeeping function.If the panel applies the wrong standard, he contends, the entire process that follows is tainted.According to the affidavit, the significance of the panel’s role has increased because amendments to the National Assembly rules mean that once a panel finds sufficient evidence, the matter automatically proceeds to an impeachment committee.The National Assembly no longer serves as a gatekeeper between the panel and the committee. That makes the panel’s interpretation of its mandate crucial, Ramaphosa argues.Zungula also argues that Ramaphosa’s application amounts to an impermissible “midstream review”, a challenge to a preliminary process before it has run its course.He says South African courts have consistently held that such reviews are only permitted in exceptional circumstances, including where proceedings are vexatious, oppressive or fundamentally unfair.“The general prohibition against midstream reviews is fatal to this application,” Zungula argues.The papers reveal that Ramaphosa’s legal team intends to challenge several aspects of the panel’s reasoning.Among the complaints are allegations that the panel relied on hearsay evidence, failed to properly distinguish between information and admissible evidence, and drew adverse conclusions from the existence of unanswered questions rather than from established facts.The president also attacks what he characterises as a reversal of the burden of proof.Instead of requiring those seeking his impeachment to produce sufficient evidence, he argues, the panel effectively required him to disprove allegations against him.Supporters of the impeachment process have argued that the panel was only required to conduct a preliminary assessment and was never intended to make definitive factual findings.Ramaphosa, however, maintains that even a preliminary assessment must be grounded in sufficient evidence and cannot rest on suspicion, conjecture or unresolved allegations.