President Cyril Ramaphosa has announced that he is taking the section 89 Independent Panel's report in to the Phala Phala theft on review again.
Image: Oupa Mokoena / Independent Newspapers
President Cyril Ramaphosa’s original attempt to have the section 89 Independent Panel’s report and its recommendations reviewed, declared unlawful and set aside failed at the Constitutional Court over three years ago.
The panel investigated the theft at Ramaphosa’s Phala Phala game farm in Bela-Bela, Limpopo, in February 2020, of US$580,000, which was around R9 million at the time, and made recommendations to the National Assembly for the report’s adoption and establishment of an impeachment committee.
However, the ANC used its then parliamentary majority to crush the November 2022 report the following month.
The panel found that the information before it disclosed, prima facie, that Ramaphosa may have committed serious violations of the Constitution and the law as well as serious misconduct.
In the intervening period, Ramaphosa launched an application for direct access stating only the apex court may decide the matter.
“The applicant (Ramaphosa) applies to this court for the following orders …It is declared that any steps taken by the National Assembly pursuant to the report are equally unlawful and invalid,” the president said in papers filed on December 5, 2022.
In March 2023, the Constitutional Court dismissed the application for direct access.
On Monday, Ramaphosa responded to Friday’s Constitutional Court judgment which declared that the section 89 inquiry report must be implemented through a referral to an Impeachment Committee, unless and until the report is set aside on review.
“As a consequence, I decided then to approach our courts to take the report of the independent panel on review. I was advised by my legal team that the panel report was capable of being reviewed by a court of law on several grounds, including the misconception of its mandate, grave errors of law and unfounded conclusions of fact,” he said.
According to Ramaphosa, the outcome of the vote of the National Assembly in 2022 stopped the process of further examination through a review of the report resulting in it having no practical and legal consequence.
“I therefore did not proceed at that time with the review of the panel’s report as the National Assembly had taken a decision on the matter. However, I said at the time that I reserved my right to institute review proceedings against the panel’s report should circumstances change,” he added.
In his 2022 application, Ramaphosa had told the apex court that the panel relied heavily on a confidential report from the Namibian police - a report he claimed was obtained illegally.
He said the panel did not consider whether the confidential Namibian police report or the audio clip was lawfully obtained, which the president insisted was an irregularity. The audio clip is an interview with a suspect or suspects.
Ramaphosa complained that the panel did not identify the suspect or suspects.
He said one of the suspects could be Imanuwela David, one of the three suspects currently facing charges relating to the Phala Phala burglary at the Modimolle Regional Court in Limpopo alongside Froliana Joseph and Ndalinasho David Joseph, but the panel did not seem to know.
“We also do not know who interviewed the suspect (it may be [presidential protection services head] Major-General [Wally] Rhoode, someone else from the SA Police Service (SAPS) or someone from the Namibian police – no one knows),” stated Ramaphosa’s founding affidavit.
“There is no explanation for how the confidential Namibian police report and the audio clip found their way to the panel. All that appears is that the confidential police report was an annexure to one of [Arthur] Fraser’s statements, and that the audio clip was ‘provided’ to the panel,” the president said.
Ramaphosa continued: “But the crucial question is whether the report lawfully landed in Fraser’s hands. Fraser should have explained this. The panel had a duty to ensure that any evidence before it is lawfully obtained or exclude it. It is likely that the Namibian report, if it is at all legitimate, landed in Fraser’s hands unlawfully”.
He said the failure to make the relevant consideration of whether the Namibian police report and the audio clip were lawfully obtained are a bad reason for the panel’s recommendations.
Fraser, formerly the head of the State Security Agency and national correctional services commissioner, laid criminal charges relating to the Phala Phala theft at the Rosebank police station in 2022.