Phala Phala legal challenges pile up

The EFF wants the Constitutional Court to force Parliament to act on the independent section 89 panel’s report into the Phala Phala theft despite twice rejecting it. Picture: Armand Hough/Independent Newspapers

The EFF wants the Constitutional Court to force Parliament to act on the independent section 89 panel’s report into the Phala Phala theft despite twice rejecting it. Picture: Armand Hough/Independent Newspapers

Published Feb 18, 2024


LEGAL challenges to force President Cyril Ramaphosa to account for failing to declare and report the US dollars stolen at his Phala Phala game farm in Limpopo in 2020 are gathering steam.

The EFF has filed its Constitutional Court application to overturn Parliament's decision to vote against the report of the section 89 independent panel chaired by retired Chief Justice Sandile Ngcobo.

The panel’s November 2022 report found that the information at its disposal disclosed prima facie that Ramaphosa broke the law and may have committed serious violations of sections of the Constitution and the Prevention and Combating of Corrupt Activities Act by acting in a way that is inconsistent with his office.

It also found that he committed serious misconduct by violating the Constitution by exposing himself to a situation involving a conflict between his official responsibilities and his private business.

In addition, the panel found that there was a deliberate intention not to investigate the commission of the crimes at Phala Phala game farm openly.

However, the National Assembly voted against establishing an ad hoc committee to conduct an inquiry into the Phala Phala game farm theft of $580 000 (about R8.8 million at the time the money was stolen) in March last year following its December 2022 decision not to adopt the panel’s report.

EFF leader Julius Malema wants the Constitutional Court to declare that the National Assembly’s decision to not adopt the independent panel’s report invalid, and refer it to the impeachment committee irrational.

Malema also wants the apex court to declare that the National Assembly’s December 2022 failure and decision infringes various sections of the Constitution.

Additionally, the EFF leader is seeking a declaratory order that the resolution adopted by the National Assembly in December 2022 is unlawful on the grounds that it infringes the Constitution.

Malema wants the Concourt to substitute the National Assembly’s decision with a one finding that the report was adopted or alternatively, referring the matter back Parliament to vote on the panel’s report de novo (afresh).

According to the papers, Malema has asked the Concourt to declare the rules of the National Assembly, which deal with consideration and referral of section 89 panel reports, is inconsistent with the Constitution as they allow the National Assembly to vote against any possible impeachment proceedings in circumstances where a prima facie case has been made against a sitting president by the panel, alternatively, on the basis that the rules are impermissibly vague.

“National Assembly speaker Nosiviwe Mapisa-Nqakula must be directed to amend the rules to allow for a prima facie finding to be automatically referred to the impeachment committee so that a full investigation can take place, alternatively, to provide suitable guidelines as to how the National Assembly’s discretion in terms of the rule is to be exercised,” Malema stated.

He has asked the apex court for the declaration of invalidity of the rules to be suspended for a period of 12 months, to allow the National Assembly to effect the amendment to the rules as foreshadowed therein.

The EFF believes that amending the rules is the only way to effectively hold the president to account under section 89 of the Constitution, as it constrains the majority party’s ability MPs to toe the party line.

Malema complained that the ANC used its majority to vote down the independent section 89 panel’s report based on the governing party’s mangled conflation of “sufficient evidence” being different to “prima facie evidence”.

”The court should appreciate that the ANC did not advance an evidentiary basis upon which to gainsay the panel’s conclusions,” reads his founding affidavit.

Malema continued: “The National Assembly could only have voted down the report if no prima facie case was made against the president”.

He added that the National Assembly irrationally dismissed the report at this stage on spurious and inconceivable grounds.

”The reasons for the dismissal (by the ANC majority party) were not rationally connected to the information contained in the report,” he explained.

In a separate matter relating to the Phala Phala theft, the Hola Bon Renaissance (HBR) Foundation and the African Transformation Movement (ATM) have filed their application to review and set aside Public Protector Kholeka Gcaleka's report exonerating Ramaphosa from any wrongdoing relating to the theft at the North Gauteng High Court.

The HBR Foundation and the ATM are still in the process of consolidating their separate applications to be heard as one.

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