A president acting selflessly to protect the office for all who will hold it after him, or a man clinging to power who cannot stomach the “humiliation of accountability”?
These dramatically different portraits of Cyril Ramaphosa emerged on Wednesday, one painted by his spin doctor, the other by a host of political parties in the Western Cape High Court.
It is in this court that Ramaphosa is asking for the impeachment inquiry against him to be stopped in its tracks.
This is because he is separately asking the same court to throw out the report on which the Section 89 process rests, a case that will only be heard in September.
Advocate Wim Trengove SC, for Ramaphosa, will have the last word when he exercises his right of reply on Thursday morning before judges André le Grange, Matthew Francis and Diane Davis.
While Trengove was on his feet in court 18 on Wednesday, Ramaphosa’s spokesperson Vincent Magwenya told a media briefing that Mzansi’s first citizen was litigating for every president still to come.
“What the president is doing here is simply exercising his right,” Magwenya said.
“You cannot have a flawed report forming the basis for the removal of a president.
“It is that simple.”
He said the outcome would decide how high the bar sits for removing a sitting president, a standard that would bind every impeachment attempt against future holders of the office.
Magwenya poured cold water over any suggestion that Ramaphosa was borrowing from Jacob Zuma’s Stalingrad playbook, saying the erstwhile president had no reason to fight the report in 2022 because Parliament’s vote had rendered it toothless.
The Stalingrad strategy is named after the Second World War battle in which Soviet forces wore down the German army over five gruelling months.
In court, it works the same way, with the accused fighting every procedural point tooth and nail and appealing every unfavourable ruling to keep the day of reckoning at bay.
The term was coined by Zuma’s own late advocate, Kemp J Kemp SC, who said in 2007 that his client’s defence would be fought “burning house to burning house”.
Nearly two decades after his ex-financial adviser Schabir Shaik was convicted of fraud and corruption over payments made to Zuma, the former head of state has still not stood trial on the arms deal charges against him.
Magwenya’s assurances found no takers in the courtroom on Wednesday, where the application took a beating from every direction.
Advocate Dali Mpofu SC, for the MK Party, said the only harm Ramaphosa had pleaded was his own embarrassment, and turned the institutional argument on its head.
“He comes here, and he says, well, I cannot be put through the humiliation of accountability,” Mpofu said.
“What? What happened to the people of SA?
“The people of SA can only hold the president accountable through their elected representatives, which is Parliament.
“That is the only tool in the hands of the people of this country to get the answers of what happened at Phala Phala.”
The application asks the court to bar the National Assembly’s section 89 impeachment committee from starting the public inquiry that could end Ramaphosa’s presidency, until the same court decides his separate challenge to the independent panel report underpinning it, set down for September 2 to 4.
The report, by a panel chaired by former chief justice Sandile Ngcobo, found in November 2022 that Ramaphosa had a case to answer over the foreign currency stolen from his Phala Phala game farm near Bela-Bela in 2020.
The ANC’s then majority strangled the report at birth in December 2022, but the Constitutional Court breathed life back into it in May, ruling the vote irrational and unconstitutional and dispatching the report to an impeachment committee.
Trengove pitched the president’s case on where the bar for removing a head of state should sit.
He argued the Ngcobo panel set the threshold too low by asking only whether a prima facie case existed, instead of whether the evidence justified the “momentous” step of a public inquiry against a sitting president.
“If that is the question you ask, then the outcome is inevitable, because the speaker had already determined that there is a prima facie case,” Trengove said.
“It asked itself the wrong question.”
The bench was openly sceptical.
Le Grange told Trengove the president appeared to believe his own account should trump everything against him.
“I’m getting the impression sitting here that the president thinks that, listen here, my evidence [that] I give must weigh heavier than all this, as he terms it, hearsay evidence from his accusers,” Le Grange said.
Trengove said the president’s indignation at facing “evidence of undisclosed origin” was an understandable human reaction, but that his complaint was narrower, namely that the panel never properly weighed his version.
Trengove tried to wave away a passage of the Constitutional Court’s judgment as a passing remark, only for Le Grange to fire back that read in context it could hardly be one.
Advocate William Mokhare SC, for impeachment committee chairperson Makashule Gana, said the Constitutional Court itself sent the report to the committee, and that an impeachment could not be paused partway.
“You can’t hold it midway,” he said.
Advocate Anton Katz SC, for the ATM, said the president complained bitterly about Parliament pressing on with the inquiry but never attacked the lawfulness of that decision, and without that his case was dead in the water.
Katz, a veteran of the litigation wars of the Zuma years, could not resist the sense of history repeating.
He said it was akin to a flick.
“The name of the movie is Nkandla to Phala Phala, The Saga Continues,” he said.
“And four of us, that’s Mokhare, Mpofu, Trengove and I, are veterans of this saga.”
Katz said Ramaphosa was asking the court to help him meddle in the processes of Parliament, warning the bench to stay out of the lane of another branch of government.
“They’re trying to stop a process. This is not the review.
“This is a disturbance of a process that is unfolding,” he said.
Advocate Mfesane Ka-Siboto, for the EFF, said Ramaphosa had lived with the report in the public domain for years without lifting a finger, and only ran to court when it threatened to cost him his job.
“He’s concerned about the consequence of the report, which is possible impeachment,” he said.
“Hence, we are here.”
Ka-Siboto said the law sets a high wall around Parliament that a court may only breach in the rarest of cases, and the president had not even attempted to scale it:
- Ramaphosa had to show exceptional circumstances before a court could interdict the workings of Parliament;
- The interdict could only be granted in the clearest of cases;
- His own replying affidavit dismissed the heightened test as inapplicable, calling the EFF “mistaken”; and
- He neither pleaded nor showed exceptionality, which on its own sank the application.
Ka-Siboto said the remedy Ramaphosa was hunting for in court had been in front of him all along, the impeachment committee, where his version of events could finally be tested under examination.
“It is him showing his innocence of the charges that will truly exonerate him,” he said.
Le Grange asked whether that did not place an onus on Ramaphosa to prove his innocence, and later whether Ramaphosa would not be harmed by being cross-examined on a report that might yet be declared unlawful.
Ka-Siboto conceded the risk but said nothing unusual was being demanded of him.
“There’s nothing that’s being asked of the president that is not being asked of anyone else who is a member of society,” he said.
Outside court, MK Party deputy president John Hlophe said the president was wasting the court’s time.
“You cannot interdict an inquiry which has already been directed by the apex court,” Hlophe said.
“Once the Constitutional Court has made a ruling, there is no further appeal.”
Political analyst Prof André Duvenhage said whatever the bench decided, the impeachment maths had changed since the report was last before Parliament.
When the National Assembly voted against adopting the Ngcobo report in December 2022, the ANC held 230 of the house’s 400 seats, and the motion was defeated by 214 votes to 148, according to the parliamentary record.
The 2024 election results published by the Electoral Commission of SA reduced the party to 159 seats.
Removal of a president under section 89 of the Constitution requires a two-thirds majority, at least 267 of the National Assembly’s 400 members.
Duvenhage said that meant the ANC could no longer defeat an impeachment vote on its own numbers, though Ramaphosa’s opponents would still need support from within the governing coalition to reach the threshold.
IOL
