President Cyril Ramaphosa’s bid to torpedo the Phala Phala impeachment report reached the Western Cape High Court on Thursday where judges openly questioned the evidence linking him to couch cash.
The president wants the Section 89 independent panel’s report set aside after it found in November 2022 that enough evidence existed for him to face four impeachment charges. Opposing parties insist the hidden foreign currency exposes a president who broke the rules.
Couch Cash Claims Take Centre Stage
The court heard that more than half a million dollars stolen from the Phala Phala game farm was stuffed into a leather couch to conceal what opponents describe as a paid side hustle.
“If you’re engaged in concealing money in a couch, you are doing so because you don’t want to fall foul of the contravention of other paid work,” Adv Kessler Perumalsamy, for the African Transformation Movement (ATM), one of the parties opposing the application, said in court.
“The source of the money is the key that shows that you have done other paid work.”
The ATM, which brought the original impeachment motion, is opposing the review alongside the EFF and the MK Party, all three among the nine respondents cited in the application.
How The Farm Scandal Reached Court
The charges stem from the theft of about US$580,000, between R8,5 and R8,7 million at the time, from the Limpopo game farm in February 2020.
The break in was never reported to the police, and it only surfaced in June 2022 when former State Security Agency boss Arthur Fraser laid a criminal complaint alleging a cover up.
ATM leader Vuyolwethu Zungula relied on those allegations when he moved for Ramaphosa’s impeachment in the National Assembly.
The first of the four charges accuses Ramaphosa of doing other paid work by running a farming business, something the Constitution bars a member of the executive from doing.
The impeachment inquiry cannot sit while the review is pending, after the same court barred Parliament’s impeachment committee from meeting in July.
If the application fails, the committee can hold a public inquiry that could ultimately end in the president’s removal from office.
Judges Demand Hard Evidence
Judge Mark Sher, one of three judges hearing the matter, pressed the ATM’s advocate on what actually connects the president to the hidden money.
“Where is the evidence that the president engaged in stashing or concealing the money in the couch?” Sher asked.
“Where is the evidence that the president knew that that is what was planned, that the president directed that that is what must happen, that the president acceded to that, was an accomplice to that?
“Where is the evidence that the president was at all involved in that? That he even knew that this happened?”
Perumalsamy responded that the panel rejected the president’s version and decided the issue on a balance of probabilities, finding it unlikely the lodge manager would ignore an instruction to use the farm safe and instead hide the cash in the president’s home on his own initiative.
Delay Row Erupts Over Jurisdiction
Adv Dali Mpofu SC, for the MK Party, argued that the court has no jurisdiction to hear the matter at all.
He described that objection as the gateway through which everything else must pass, insisting the application was not ripe for review and that Ramaphosa took too long to bring it.
“All we are here for is [for Ramaphosa] to delay, delay, delay, delay,” Mpofu said.
Ramaphosa’s advocate Wim Trengove SC argued on Wednesday that the panel asked itself the wrong question and never considered whether the president acted deliberately and in bad faith, as the impeachment rules require.
Panel Report Under The Microscope
The panel, chaired by former chief justice Sandile Ngcobo, was created to decide whether enough evidence existed to warrant an impeachment inquiry in Parliament.
Judge President Nolwazi Mabindla-Boqwana put it to Perumalsamy that the panel never tied its chapter on where the money came from and how it entered the country to any of the charges.
“It leaves it up to us, as the readers, of how that portion is related to the charges, for us to actually infer or make our own connection,” she said.
Sher then questioned whether anything at all showed the money was payment for work the president had done.
“Is there any evidence in that regard, even by way of suggestion?” he asked.
“I’m not aware of anything like that.”
Judge Ncumisa Mayosi asked where the panel had dealt with Ramaphosa’s answer to the first charge, namely that he was entitled to hold a passive business interest and that he had declared it.
“It does not appear to me to have assessed the president’s version, unless I’m wrong,” she said.
“Where did that assessment take place?”
Sher noted that the foreign currency entered the case through a supplementary affidavit filed by the ATM after its motion, not as part of a charge.
“Should your client not have amended the charge? In this instance, that was not done. So the president was not charged in that regard,” he said.
Perumalsamy conceded imperfections in the report while maintaining that the finding was rational.
“not a picture perfect analysis”
Private Interest Versus Security Interest
The third and fourth charges concern the instruction Ramaphosa gave Major General Wally Rhoode, head of the Presidential Protection Unit, after the theft, allegedly sending him to Namibia to trace the stolen money.
“Charge three says you instructed General Rhoode to investigate security issues at your private property, and this being your private property, General Rhoode had no business doing such an investigation,” she said.
“The question is whether on its own the panel analysed charge three.”
Mayosi said the panel had conflated the two charges.
“There appears to be no analysis whatsoever and no finding on charge three in this combined approach,” she said.
Ramaphosa answered that charge by pointing to the Presidential Handbook, which allows protection on private property, a response the panel never dealt with.
Perumalsamy said the panel concluded the investigation was ordered to protect a private interest rather than a security interest.
Prima Facie Fight Over Evidence Bar
Advocate Mfesane ka-Siboto, for the EFF, argued that the panel’s role was far more limited than that of the impeachment committee.
“The function of the independent panel is to determine whether there’s something to look into here,” ka-Siboto said.
“Sufficient evidence is simply a question of is there enough, with the powers and the limitations that the panel has, enough for the panel to ask the impeachment committee to look further into the allegations against the president.”
He said the term the panel relied on meant nothing more than preliminary in that context, and that the president was reading far more into it than the rules allow.
“prima facie”
Prima facie means on the face of it, and in court it describes evidence strong enough to prove a case if nobody answers it, which is why Ramaphosa’s team argued the panel set the bar too low by ignoring his answer.
Ramaphosa has denied wrongdoing throughout and maintains the foreign currency was the proceeds of a game sale.
The application, which started on Wednesday before Sher, Mabindla-Boqwana and Mayosi, remains on the court roll until Friday with argument continuing.