Impeachment panel omits allegations of Ramaphosa cover-up

1 December 2022 

Yesterday the Parliamentary Independent Panel investigating impeachment allegations found that President Cyril Ramaphosa is “guilty” on four serious charges relating to the Phala Phala scandal, but evidence on one of the most dangerous allegations was expressly, and alarmingly, omitted.

The ATM party submitted to the Panel that “Ramaphosa acted in bad faith and was conflicted when he suspended Advocate Busisiwe Mkhwebane, the Public Protector …[and that] ATM contends that he was triggered by the 31 questions relating to the Phala Farm scandal”.

There should be no doubt that Mkhwebane should have been suspended years ago. There is also no doubt that Ramaphosa could have suspended her at least since February 2022. The question is therefore why he only suspended her on June 8, the day after she announced her investigation into Phala Phala, the day before a court judgment on whether the removal process was lawful, and months before other court challenges were decided.

Why did it take so long to suspend Mkhwebane? Ramaphosa cannot say it was because he wanted to wait for all Mkhwebane’s court challenges to clear first, as that had not yet happened. Nor can he say that he was acting expeditiously to protect the country, because then he would have suspended Mkhwebane months, or years, earlier.

As a full bench of the Western Cape High Court unanimously held:

“Significantly, the sequence of events leading to the suspension of the applicant cannot be discounted or overlooked…[O]n 7 June 2022, [Mkhwebane] informed the President in writing that she was instituting an investigation against him with regard to allegations relating to a violation of the Executive Ethics Code in respect of the Phala Phala farm incident. Thirty-one questions were raised and the President had to respond thereto within 14 days.

This correspondence was followed by a public announcement by the applicant on the 8 June 2022 that she had decided to launch an investigation against the President in respect of the Phala Phala matter. In response, on the 9 June 2022, the President decided to suspend the applicant.

On these objective facts, it is reasonable to form the perception that the suspension of the applicant was triggered by the decision of the applicant to institute an investigation against the President. There was no other plausible or logical explanation for the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.”

The Court went on to say, “The above considerations do not detract from the fact that [Mkhwebane’s] suspension was long in the making. However, at the time the suspension was finalised, the President was dealing with an investigation by the applicant, the substance of the allegations of which he could not discuss as he had done with the other investigations, and this, in our view, is the critical time to assess whether it was still tenable for the President to exercise the suspension powers.”

To summarize, Ramaphosa had the power to suspend Mkhwebane for months or years, but only exercised this power the day after she announced the Phala Phala investigation and the day before the latest judgment was to be handed down on whether Mkhwebane’s impeachment could proceed.

On June 15, 2022, the IRR’s legal team wrote to the Presidency requesting that he publish all information that supported his claim that his “timing” was beyond reproach. The Presidency stated in reply that “(it) is expressly denied that the President acted in a manner that was irregular” regarding the timing of Mkhwebane’s suspension, while failing to supply the relevant evidence.

The Parliamentary Panel likewise failed to produce or consider the relevant evidence on the timing of Mkhwebane’s suspension. The Panel Report claims that because the High Court judgment against Ramaphosa is up for appeal it has “no force” and therefore “the Panel cannot entertain this supplementary evidence based on the findings of the First Judgment.”
This is unreasonable.

Even if the Panel wished not to rely on the High Court’s judgment it should have considered the evidence from the High Court case, which largely constituted of uncontested written and Whatsapp correspondence emanating from the Presidency, just as it considered evidence supplied by individuals including Arthur Fraser and Wally Rhoode.

Said Gabriel Crouse: “The upshot is that a High Court was shown prima facie evidence that Ramaphosa acted in an impeachable fashion by suspending Mkhwebane too late to serve South Africa but just in time to try block the Phala Phala investigation. The Panel ignored this evidence outright. It is quite alarming.”

It is worth noting that when US President Richard Nixon faced impeachment half a century ago the original offences emanating from the Watergate Hotel were not nearly as important as the subsequent Presidential attempt at a cover-up, which included firing high-ranking investigative officials, just as Ramaphosa has been found to have done by a High Court. For evidence supporting that charge against Ramaphosa to be expressly ignored puts accountability on the back foot.

Issued by Gabriel Crouse, IRR Head of Campaigns, 1 December 2022