There are questions South Africa has been asking since the winter of 2022, and they have not grown quieter with time. Where did the dollars come from? Why were they kept in a sofa on a game farm? Who sent a presidential protection officer across a border? Six years after cash was stolen from Phala Phala, those questions were back in a Cape Town courtroom last week, not as gossip, but as the ground on which a president is trying to stop an impeachment inquiry before it hears a witness.
President Cyril Ramaphosa asked the Western Cape High Court to set aside the November 2022 report of the Section 89 independent panel chaired by retired Chief Justice Sandile Ngcobo. The panel did not find him guilty. It found something narrower, and for Parliament more awkward: that there was a prima facie case to answer on possible breaches of section 96 of the Constitution and of the Prevention and Combating of Corrupt Activities Act, after about US$580,000 was stolen from his Limpopo farm in February 2020. Ramaphosa has said the money came from the sale of buffalo. The theft was not reported to the police at the time. It became public in June 2022, when former State Security Agency director-general Arthur Fraser laid a complaint.
In May this year the Constitutional Court ruled that the National Assembly had acted unlawfully when it voted not to process that report. The report, the apex court said, had to go to an impeachment committee. Last week a full bench, Judge President Nolwazi Mabindla-Boqwana, Judge Mark Sher and Judge Ncumisa Mayosi, heard Ramaphosa’s review. Judgment was reserved.
Advocate Dali Mpofu SC, for the uMkhonto weSizwe Party, told the judges they were being asked to undo work the Constitutional Court had already done. The report now before the country, he argued, is no longer merely the child of a panel. It is a report the Constitutional Court revived and placed in Parliament’s hands. On that reading, the High Court has no jurisdiction to take it away. “Do not undo the good work of the Constitutional Court,” he submitted. “Let the president go and answer to the people of SA.”
He was careful, in the passages that matter, not to treat a review as a criminal trial. “Is the president guilty? I don’t know. But is there a case to answer? Of course.” Anybody who came to court “to speak big English” and say there was no case, he added, was playing games with the country. The panel’s finding, in his telling, was modest: on the facts before it, and within the limits of its mandate, there was enough to put questions. “What is wrong with that? How can that be irrational in anybody’s language?”
Underneath sat the delay argument. If the report falls, Mpofu said, each of the many steps in a section 89 process can be taken to court on its own. “We are going to be here 17 times. If the court allows that to happen, the court will participate in a scheme to stop accountability.” He used the old political word for it , Stalingrad, and said the only people left without answers would be the public. “The one thing that will not happen is for the president to answer, where did the dollars come from? Who sent Rhoode to Namibia, to no man’s land?”.
Advocate Wim Trengove SC, for the President, put a different case. The panel, he argued, asked itself the wrong question. Impeachment rules require a finding about deliberate, bad-faith conduct, and the report had not done that work. There was, he said, no evidence linking Ramaphosa to the way Major General Wally Rhoode conducted the off-the-books investigation. Public hunger for an explanation is not, on that view, a legal defect in the President’s review.
None of this is a verdict. It is the argument the country heard while an impeachment committee already exists in Parliament, chaired by Makashule Gana, and while an interim interdict has kept that committee from hearing evidence until the review is decided. This morning the committee voted to oppose new court applications by the EFF and the African Legal Professionals Association over its withdrawal of advocate Thandazani Griffiths Madonsela SC as evidence leader, a nomination pulled after the President wrote alleging a real or perceived conflict. The farm, the dollars and the sofa are no longer the only fight. The fight is now also about who is allowed to ask the questions.
Mpofu’s most quoted line of the week refused a rescue. “There is no way out; we all would love to save the president, I suppose, but he is unsaveable until he answers what those dollars were doing there.” That is an advocate’s flourish, not a finding of fact. The finding still belongs to a committee that has not yet sat in public, and to judges who have not yet spoken. What last week made plain is simpler. The panel said there was a case to answer. The Constitutional Court said Parliament must hear it. The President says the panel got the law wrong. Until a court chooses between those positions, the questions stay where they have been since the cash left the farm: on the table, unanswered, and still the country’s to ask.
