Omphemetse Sibanda | 4 arguments Ramaphosa could use in his challenge of Phala Phala report

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Omphemetse Sibanda | 4 arguments Ramaphosa could use in his challenge of Phala Phala report
Omphemetse Sibanda | 4 arguments Ramaphosa could use in his challenge of Phala Phala report

Africa-Press – South-Africa. Omphemetse Sibanda considers some defences that President Cyril Ramaphosa may employ when he approaches the Constitutional Court for a review of the section 89 panel report.

The summary of the 2011 article by Kathryn Hochstetler and David Samuels entitled: “Crisis and Rapid Re-equilibration: The Consequences of Presidential Challenge and Failure in Latin America,” which was published in the Comparative Politics journal addressing the issues of presidential challenges and crises in Latin America, reads as follows:

Presidents continue to confront challenges. Between 1978 and 2006, 30 percent of all democratically elected presidents worldwide faced serious efforts to remove them from office, and 12 percent were forced out before their terms ended. While scholars have explored the sources of these crises, focusing on their effects is equally important. If such crises have profound consequences, then even with regime collapse not at issue, presidentialism would remain associated with normatively bad outcomes. Yet if challenges or failures have minimal effects, then early presidential exit may represent an underappreciated equilibrating mechanism.Consequences of an early presidential exit or regime collapse, have topped discussions, opinions and comments following the release of the Section 89 panel report last week.

The panel among others found that the fact that no docket was opened into burglary, pointed to first-impression evidence that the President Cyril Ramaphosa broke the law by failing to report a theft of more than R100 000 (US$580,000) because anti-corruption legislation imposed a duty to do so.

“On the information presented to us, the housebreaking and theft of US$580,000 was not reported to a police official in the Directorate for Priority Crime Investigation as required by Section 34(1). Nor was it reported to any SAPS station, as no case was opened or a docket registered for this offence. In our view, this information, prima facie, discloses that the President violated section 34(1) read with section 34(2) of PRECCA”, said the panel [para 253].

The panel concluded that President Cyril Ramaphosa committed a serious violation of section 34 of PRECCA relating to corrupt activities and a serious violation of section 96(2)(a) and (b) of the Constitution of the Republic with regard to his oath of office.

South Africa has a matrix of domestic legislation that caters to the particular offences that are associated with white-collar crimes.

Primarily, the matrix of this legislation is constituted by the Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA), the Financial Intelligence Centre Act 38 of 2011 (FICA) and the Prevention of Organised Crime Act 121 of 1998 (POCA).

In addition to the common law offence of corruption, PRECCA is South Africa’s key legislation creating the general offence of corruption. It does, in addition, make provision for ancillary offences such as being an accessory to corruption and attempting or conspiring to commit an offence.

FICA creates obligations to report and monitor accountable institutions such as banks concerning suspected offences such as money laundering. In addition, FICA creates offences relating to non-compliance with the provisions of FICA as well as offences for interfering in the investigations of the Financial Intelligence Centre.

POCA, on the other hand, creates statutory offences generally associated with the organised crime environment, such as racketeering and money laundering.

Lackadaisical approach

A careful reading of the report, notwithstanding its patent gaps and lackadaisical approach to the matter in some instances, has brought together the essence of these three pieces of legislation by overtly and covertly suggesting that the Phala Phala saga is a possible mosaic of offences relating to corruption, in which the investigation is hindered to hide the true nature of what happened or what is really involved; racketeering, money laundering and other organised crime offences, tax evasion, and violation of foreign exchange laws.

For the third time, the ANC-led government of South Africa is facing a crisis that may lead to the resignation or recall of the incumbent.

It was first former president Thabo Mbeki then Jacob Zuma and currently, Ramaphosa’s presidency is on shaky grounds. What we are witnessing is how political leaders – friends and foes – operate when ‘politics as usual’ is suddenly shaken by a crisis not favouring the incumbent president.

Suddenly pointed questions and doubts are raised about the effectiveness, competency, legitimacy, and fit-for-office of the incumbent officeholders. Already, we are witnessing individuals’ partisan and different ideological views that are strong predictors of the South Africa we want, or do not want.

Interestingly, the vulnerability of the Ramphosa Presidency is not only in the political fallout inside his party. It also stems from opposition parties that argue for his alleged ineffective at the helm of the Republic.

Opposition parties may see this as an opportunity to assume power through early elections or draw away popular support from the governing party. Others may argue that Ramaphosa’s removal is a fitting fall for a leader at the helm of a political movement that had lost its way and moral campus. His supporters, of course, may view his ouster as a coup that undermines the efforts of a leader who has a clear agenda to restore public confidence in ANC’s leaders and diminish the corruption that has permeated the country as was demonstrated at the state capture commission.

The Phala Phala crisis, like the implementation of the state capture outcome, offers an opportunity for the country to witness political leadership in action.

It determines without a doubt that ‘who leads matters’. In other words, whoever leads should Ramaphosa call it quits or be pushed off the Phala Phala cliff matters. Whichever way this storm in the tea cup blows, one hopes that the outcome will not empower demagogues to wrestle power nor promote the narrative that laws do not matter in South Africa.

Silence isn’t always golden

In the case of the president, the loud message is that silence is not always golden. Remaining silent in some instances and failing to report a crime to authorities can attract criminal liability to you.

In terms of mandatory reporting laws failing to report a crime or suspected crime may lead you to become an accessory after the fact.

In terms of section 34(1) of PRECCA, it is an offence for a person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed an offence not to report such a commission of a crime. The caveat is that many people are unaware of their legal obligations in terms of PRECCA when it comes to reporting criminal activity. Of course, ignorance of the law is not an excuse.

Should Ramaphosa resign? If he does not resign, will he not find himself without any defence to the section 89 Panel findings? In my opinion, it can go either way.

On Sunday, Ramaphosa’s lawyer confirmed that he will seek a review of the report in the Constitutional Court. The president may argue one or all of the following, for instance:

He is the subject of a conspiracy and smear campaign to take him out of office on the strength of speculation and conjecture. Judge Sandile Ngcobo labelled former spy boss Arthur Fraser’s complaint about the concealment and theft of forex from the president’s Phala Phala farm as “hearsay evidence”. What would strengthen this argument is the fact that the panel indirectly admitted that relying on Fraser’s version of the theft may cause harm. In a way, the panel has wilfully decided on the strength of the evidence itself and does not trust it. “While Mr Fraser has not disclosed the source of his information, given the seriousness of the allegations he is making and the potential harm they can cause if untrue, we assume that at an appropriate forum and when the need arises, he will, when called upon to do so, disclose the source or sources of his information,” said Ngcobo.

Ramaphosa never conspired with, aided, induced, instructed, commanded or counselled another person to commit an offence under PRECCA; and thus he is not guilty of any offence. Section 21 of PRECCA provides that a person who conspires with any other person, aids, abets, incites, instigates, instructs, commands, counsels or procures another person to commit an offence in terms of PRECCA is guilty of an offence.

As the sole member of the Phala Phala farm, Ramaphosa reported the crime as required by section 34(4) of PRECCA. His challenge in this regard will be that he did not report it to the Directorate for Priority Crime Investigations (colloquially the “Hawks”) within the South African Police Services.

The panel erred in its outcome and misdirected its mind when it came to the “abuse of public power” or “the abuse of oath of office.” Proving a violation of the two concepts must meet the highest standard to be confirmed in the positive and not merely on the strength of hearsay evidence. This is a serious and complex indictment which requires a high standard of confirmation. Notable is that contraventions of PRECCA, include a fine of unlimited value; and a prison sentence of up to life imprisonment. In terms of POCA, for instance, the penalty when found guilty of the offence of racketeering is a fine not exceeding R1 000 million, or imprisonment for a period up to imprisonment for life. And the penalty for a money laundering conviction and acquisition, possession or use of proceeds of unlawful activities is a fine not exceeding R100 million, or imprisonment for a period not exceeding 30 years. Taking or approaching this Phala Phala panel outcome lightly or dismissively Ramaphosa will be doing this at his peril.

The panel, which included an experienced and imminent person in legal matters, should have known better that hearsay evidence will not make the case reach the required threshold. How the panel outcome is framed, read in the context of the discussions and observation by the panel in its report, it is a slippery slope for the country when an alleged breach of duty to report in terms of PRECCA is morphed into a serious standard for breach of constitutional oath of office in terms of section 196(2). The panel could have been much clearer in its conclusion instead of throwing the cat among the pigeons. If this panel approach survives constitutional court review, then in the future it should be easy to remove a sitting president.

This case is complicated with many tentacles. Also, for it to rise to the strong level of impeachment of Ramaphosa and transcend the political and bi-partisan nature of the impeachment, more investigation is needed.

Without more evidence pointing beyond a reasonable doubt that Ramaphosa committed a crime under PRECCA by not reporting the theft of his money, the case against him remains “hearsay”. Any subsequent attempt in Parliament to impeach him or a motion to remove him may be stillborn. Even lawyers, law academics and expert commentators are not in unison in entirely supporting the correctness of the panel outcome. Concrete, tested, and corroborated evidence must be adduced to securely prove that Ramaphosa acted in intentional or reckless indifference to the crime committed at his Phala Phala farm; and to his oath of office under section 196(2) of the Constitution.

Those in glass houses should be put on notice

I agree that Ramaphosa must be treated equally to other former and current public power bearers who were involved in past corruption scandals such as state capture and VBS scandals. Also, the latter should not be treated differently from the manner Ramaphosa will be treated. Those throwing stones at Ramaphosa while staying in glass houses must be put on notice. Stones may be coming their way sooner than expected.

In conclusion, I am reminded of Lord Devlin in the 1964 United Kingdom case of Rookes v Barnard [1964] AC 1129, who addressed the issue of treating public officials differently when he said:

“Where one man is more powerful than another, he will inevitably try to use his power to gain his ends; and if his power is much greater than the other’s, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in an ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government, it is different for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. It is true that there is something repugnant about a big man bullying a small man and, very likely, the bullying will be a source of humiliation that makes the case one for aggravated punishment, but it is not, in my opinion, punishable by extreme measures. (My emphasis)

– Professor Omphemetse S Sibanda, Legal Scholar Without Borders, is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo.

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