The chances of South Africans ever finding out what really happened at Phala Phala were dealt a major blow on Friday. Parliamentary journalist Jan Gerber explains why.
“As expected,” grumbled MKP MP David Skosana after Judge Andre le Grange read the Western Cape High Court order granting President Cyril Ramaphosa an interdict against the impeachment committee conducting hearings into the Phala Phala affair.
“We are a banana republic,” continued Skosana, one of several MPs who packed courtroom 18 on Friday morning.
For Skosana, the issue was perhaps a bit closer to home than most. On two occasions, his wife, former Public Protector Busisiwe Mkhwebane, asked the same High Court to grant interdicts against parliamentary impeachment proceedings against her. Neither succeeded.
When the court dismissed Mkhwebane’s bids in 2020 and 2022, it used language that treated Parliament’s role to ensure accountability as almost sacrosanct.
Judge Vincent Saldanha warned in October 2020 that any interdict would “tread deep into the heartland” of the legislature’s constitutional authority, permissible only in the “clearest of cases”, and that Mkhwebane’s case was not one of them, given that her impeachment process was at an early stage and her credibility had already been battered by adverse Constitutional Court findings.
By June 2022, with a full bench dismissing her second attempt, the court held that any delay in her impeachment proceedings would inflict “serious prejudice to the public interest, coupled with the separation of powers harm to the National Assembly”.
In both cases, the balance of convenience and the reading of public interest pointed the same way: toward letting Parliament get on with holding an office-bearer to account, because the applicant’s parallel legal challenges were assessed as weak and the harm to her was considered reversible.
At first blush, Friday’s majority ruling in favour of Ramaphosa looks like the same court having abandoned its earlier posture. This poses the uncomfortable question of whether the court treated Ramaphosa differently.
READ | Ramaphosa secures court interdict halting Phala Phala impeachment hearings
However, where Friday’s majority ruling parted from the Mkhwebane-era logic was in applying a “sliding scale” to determine how much deference it will pay to Parliament’s oversight role.
It did this because the relief Ramaphosa sought was narrow – only pausing public hearings – compared to Mkhwebane’s attempts to stay the whole inquiry. It thus saw the costs of intervening in Parliament’s oversight role as minimal.
Furthermore, Ramaphosa asked for his interdict pending a review application already on the court roll in about six weeks’ time, compared to the speculative, repeatedly-rejected and often bizarre litigation brought by Mkhwebane (her second interdict application was asking for a stay pending a recission application).
The Ramaphosa-majority ruling differs sharply from the Mkhwebane rulings in how it treated the reversibility of harm.
The courts held that Mkhwebane wouldn’t suffer irreversible harm if her impeachment inquiry continued pending her litigation. Much evidence, deeply damaging to Mkhwebane, was heard at the impeachment hearings.
The majority ruling in the Ramaphosa case held that public impeachment hearings would cause lasting reputational damage, and that declaring the process invalid later would not undo this.
Either way, the upshot is that we are not going to have public hearings any time soon. Ramaphosa kicked for touch, and he found it. How long it will take before the lineout forms, well, that is the question. Maybe Ramaphosa will be subbed off before the ball is thrown in…
The court ordered the impeachment committee and Parliament not to conduct any hearings until Ramaphosa’s application to set aside the independent panel’s report has been heard by the Western Cape High Court.
Interim interdicts are generally not appealed because they are temporary and do not finally determine the parties’ rights. Courts usually wait for the main case to be decided, unless the order has a final practical effect, or refusing leave to appeal would cause irreparable harm.
Besides, Ramaphosa’s interdict application will be heard in early September. So, on the face of it, it seems like a minor roadblock on this impeachment motion’s already arduous path.
You can’t remove a former president from office
Speaking to the media after Friday’s ruling, MKP MP Andile Mngxitama said: “It’s highly, highly disappointing that this court wants to delay because the president’s strategy is to delay the impeachment process as long as he can.
“He hopes that he can delay until he gets out of power, and then it will be a superfluous process because it will no longer hold him to account. So, this court decision gives in to that strategy of delay.”
It is difficult not see the camouflage-clad Mngxitama’s point (leaving aside the irony of him representing the mayor of Stalingrad, Jacob Zuma’s, party).
Ramaphosa’s counsel, for the record, has denied that the interdict is a delaying tactic to avoid accountability.
The thing is, if you’re familiar with South African legal lawfare, you’ll know that a swift conclusion to the matter is highly unlikely.
READ | Impeachment committee seeks legal opinion on whether Ramaphosa can be compelled to testify
Even if the court rules expeditiously on the review application, the chances are that someone will appeal the decision, whichever way it goes.
Realistically speaking, Ramaphosa must hang on for around 18 months. The ANC’s next elective conference is in 17 months’ time, and leaving office before his term ends to make way for his successor as ANC leader in early 2028 would be considered a graceful exit in ANC circles.
Even if the ANC wants to see him complete his second term as president of the country, it is not impossible to envision court applications gumming up the impeachment works for three years. Keep in mind that it took the Constitutional Court 17 months to deliver the decision that revived the impeachment inquiry.
At the risk of stating the obvious: you can’t remove a former president from office, so an impeachment inquiry will become moot once Ramaphosa leaves office.
In the meantime, the impeachment committee will continue with its preliminary work.
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The committee’s chairperson, Rise Mzansi MP Makashule Gana, said on Friday that he noted that the part of the committee’s work that has been interdicted is that of public hearings and hearing oral testimonies pending Ramaphosa’s review application.
“I have studied the full judgment of the Western Cape High Court and consulted with the legal team. The preparatory work of the committee will continue with the meeting on Wednesday, 29 July,” he said.
The committee is considering its terms of reference, and now has the time to do a thorough job on that. It must also appoint an evidence leader, and the uncertainty around when, and if, the inquiry will begin, might complicate this appointment.
One could imagine that senior counsels of the calibre the committee is looking at might not want to be kept on a line by Parliament and forego other opportunities while they wait for the lawfare to end. Attorneys who have litigated in the matter are excluded from becoming evidence leaders, by the way.
Bags full of dollars... and a couch
In the meantime, the committee can’t start hearing any testimony that could poke holes (or confirm, I suppose) the following story: In late 2019, Sudanese businessman Hazim Mustafa entered South Africa from Dubai with bags full of dollars, as one does. He proceeded to Sun City, where at a party he heard about this game farm that sells buffalo. Unbeknownst to him, this game farm happens to belong to the president. He then proceeds to this game farm on Christmas Day in his limo. He was shown some buffalo, and dropped a cool $580 000 as a down payment in cash to Ramaphosa’s farm manager, Mr Ndlovu. Mustafa would later say the deposit was for Ankole cattle.
In any case, Mr Ndlovu initially stored the money in a safe, but then decided to rather move it to the sofa. In a surprising turn of events, the money wasn’t safer in the sofa than it would have been in the safe, after all, and was stolen.
Ramaphosa then brought the theft to the attention of his security chief, Major General Wally Rhoode, who takes it upon himself to investigate. IPID and the Public Protector had issues with Rhoode’s investigation, but the police gave him the all-clear and don’t want to explain why.
It doesn’t seem like this story is going to be put to serious scrutiny anytime soon.
About four years ago, ATM MP Vuyo Zungula brought the impeachment motion. He hasn’t given up on it yet, despite what appears to be the latest setback.
Asked whether he still had confidence that it would ever reach a conclusion just after the ruling, Zungula said: “Yeah, very, very positive, because it’s important for South Africans to fight for accountability, because this is a case of a president being held accountable.”
He noted that his motion was brought in terms of Section 89 of the Constitution.
“A Constitution ought to bring us together as a country, and the first citizen of the country, which is the president, must be the prime example of abiding by the Constitution. That is why it becomes important that we must have all the answers when it comes to Phala Phala.”
