SADTU calls for an investigation and possible charging of Justice Sandile Ngcobo and Thokozile Masipa

4 December 2022

The National Executive Committee of the South African Democratic Teachers’ Union (SADTU) has called for a full investigation into the conduct of the two members of the Independent Panel set up in terms of Rule 129E to investigate the possible impeachment of State President Cyril Ramaphosa, Justices Sandile Ngcobo and Thokozile Masipa. Further, the NEC will in due course lodge a formal complaint with the Judicial Services Commission in terms of Section 14 of the Judicial Services Commission Act.

The call was made at the last ordinary meeting of the NEC of the year 2022 held from 02 to 04 December at Indaba Hotel, north of Johannesburg. The NEC manages the affairs of the Union and ensures the execution of union policies. It is made up of National Office Bearers, provincial chairpersons, and secretaries.

SADTU, as a registered trade union representing over 265 000 members, has a direct and substantial interest in the protection of the constitution, the upholding of human rights of all and ensuring full accountability of those who exercise public power.

A review of the report reveals that it is fundamentally flawed. The Panel and its members made findings based on hearsay evidence in circumstances where the hearsay evidence is wholly inadmissible and the rules applicable thereto not observed.

The Panel made four main conclusions on violations the President may have committed:

- A serious violation of Section 96(2)(a)

- A serious violation of Section 34(1) of Prevention and Combating of Corrupt Activities Act (PRECCA).

- A serious misconduct in that the President violated Section 96(2)(b) by acting in a way that is inconsistent with his office.

- A serious misconduct in that the President violated Section 96(2)(b) by exposing himself to a situation involving a conflict between his official responsibilities and his private business.

The NEC holds a strong view that Judges Ngcobo and Masipa misled Parliament and the public that Section 34(1) of the PRECCA was applicable in the matter of the complaint against the President when the section was in fact not applicable.

As experts in law, the two Judges ought to have known that Section 34(1) does not apply, and that Parliament and the public would rely and act on their opinion. The effect of their conduct is that the public will, in error, believe that the President in fact contravened Section 34(1) of the PRECCA when the section did not even apply in the present circumstances.

Judge Ngcobo, at the handing over of the Report of the Independent Panel publicly stated that the Panel required an extension of 13 days amongst others to enable the members to conduct research and that the research was conducted by the members of the Panel themselves. The members of the Panel were therefore at all material times alive to the need for a properly researched report and the need for an accurate assessment of both the facts and law. The report of the Panel reflects that the Panel failed to discharge this responsibility.

The Panel and its members based their findings and conclusions on hearsay, unverified information, and untested facts aware of the adverse implications of relying on such information and with the full knowledge that information of that nature cannot be relied upon to reach such far-reaching conclusions. The Panel in its report acknowledged the risks associated with acting on such information but nevertheless proceeded to make far reaching conclusions.

Despite specifically acknowledging that they did not have access to all the information on the matter and that there were many unanswered questions which required an in-depth investigation nevertheless, the Panel and its members however, proceeded to make findings and conclusions in circumstances where it was impractical to do so. The Panel elected not to exercise its rights not to make any conclusions where it did not have adequate information. This election was made with the clear knowledge that the public would rely and act on the opinion of the Panel.

In the light of the above, the two members of the Panel and who are bound by the Code of Judicial Conduct appear to have contravened various sections of the Code and are liable to be held accountable for the contraventions. They were grossly negligent in the performance of their duties.

Judges Ngcobo and Masipa are judges as contemplated in Section 7(1)(g) of the Judicial Services Commission Act 9 of 1994 and the Code of Conduct made in terms of the Act applies to them even as they have been discharged from active service.

In terms of the Code of Judicial Conduct, the two Judges are required to always act in compliance with the law (Article 6); always act in a manner which is compatible with judicial office (Article 17(3); always behave in their professional or private life in a manner that enhances public trust in, or respect for the judiciary and the judicial system (Article 5); take all reasonable steps to maintain the necessary level of professional competence in the law (Article 10(1)(i).

Since the issue of the impeachment of the President and the holding of the President accountable in line with the constitutional values and law has serious constitutional and political implications for the Republic of South Africa, the Panel and its members were required and enjoined to ensure that their work, report, and findings are fully in line with the Constitution and law.

The work, report and findings of the Panel should ensure that it can be acted upon without creating a constitutional crisis for the Republic of South Africa and are not misleading on the facts and the law.

SADTU has a direct and substantial interest in the stability of the country and will not, under any circumstances, support or approve of any process which does not accord with our constitutional values and the law. 

SADTU believes that it is necessary and important to ensure that public officials are held fully accountable and that the rule of law, which is the foundation of our constitutional democracy, is upheld and maintained. The Union is vehemently opposed to any form of abuse of power and state resources.

Like all other organs of civil society, SADTU fully supports that a full and proper investigation be conducted into the Phala Phala Farm issue but detest the abuse of the parliamentary process to settle political scores in the name of accountability.

Issued by SADTU, 5 December 2022