Phala Phala panel asked wrong questions and applied wrong test, says Ramaphosa lawyer

President Cyril Ramaphosa’s legal team has argued that the independent panel that found he had a case to answer over Phala Phala applied the wrong legal test.

He said they also exceeded the scope of the charges against him and failed to consider whether he acted intentionally or in bad faith.

Wim Trengove made the submissions in the Western Cape High Court on Wednesday as Ramaphosa’s review application against the section 89 panel’s findings got under way. Ramaphosa is seeking to have the report reviewed and set aside before parliament proceeds with an impeachment inquiry.

At the centre of Trengove’s argument was the panel’s finding that there was “sufficient evidence” to proceed with an impeachment process. He argued that the panel wrongly treated this as equivalent to the lower threshold of establishing a prima facie case.

According to Trengove, the independent panel was intended to act as a filter between an initial complaint and a full impeachment inquiry. This was particularly important, he argued, because the subsequent committee would be made up of politicians, including the president’s political opponents.

Judge president Nolwazi Mabindla-Boqwana questioned that submission, noting that the impeachment committee would not make the final decision on whether to remove a president from office.

“But it’s the National Assembly, ultimately, that will make a decision,” she put to Trengove.

However, Trengove said he was not criticising the impeachment rules or the committee, arguing that the political and public consequences of an impeachment inquiry explained why parliament had created an independent panel to assess whether there was sufficient evidence.

Asked by Mabindla-Boqwana what constituted sufficient evidence, Trengove said the panel had to assess and weigh the evidence against the president and his explanation. “Sufficient” meant enough evidence to warrant a public inquiry, he said.

He argued that the panel instead repeatedly found only that there was a prima facie case against Ramaphosa.

Trengove argued that the panel was required to confine itself to the four charges against the president. The question was whether there was sufficient evidence that he had committed serious constitutional violations or serious misconduct as alleged in those charges.

Supplementary material and the panel’s own findings, he argued, had introduced allegations that went beyond their scope, raising questions of procedural fairness.

The review follows a Constitutional Court ruling that revived the section 89 impeachment process. The high court subsequently halted parliament’s public impeachment proceedings pending the outcome of Ramaphosa’s review application.

Business Day