Rise Mzansi’s man of the moment, Makashule Gana, is seeking refuge in the legal system as he and President Cyril Ramaphosa face off over parliament’s insistence that the Phala Phala impeachment process rolls on regardless of the president’s attempts in court to quash the original damning report.
The president urged Gana, thrust into the spotlight as chair of the newly convened section 89 impeachment committee, to put the process on hold pending his application for a judicial review of the 2022 report into the theft of about $580,000 in cash from a couch at his game farm.
Gana turned him down, so Ramaphosa filed an application in the Western Cape High Court on Friday for an urgent interdict that would force Gana to comply.
“The chairperson [Gana] appears to be under the impression that the committee does not have the power to stand the inquiry down until this court has determined the review application,” Ramaphosa says in his court papers.
“This impression is mistaken. According to rule 164 of the rules of the National Assembly, which applies to all committees, ‘the chairperson of a committee … may interrupt or suspend the proceedings or adjourn the meeting and … may change the date for the resumption of business, provided reasonable notice is given’.
“Given the attitude of the chairperson, only an order of this court can preserve the status quo pending the outcome of the review application.”
But if Gana did accede to the president’s wishes, without being ordered to do so by a court, it would be seen as a political act in defence of Ramaphosa.
Gana, speaking to the FM this week, says he is waiting for his legal team to study the papers before fully responding to Ramaphosa’s application. However, his default position is that if there is to be a delay, it must be imposed by the courts.
Asked if Ramaphosa had a point, in that the work of the committee will give oxygen to a report that might yet be declared fatally flawed, Gana says the parliamentary process — which was set in motion by a Constitutional Court ruling — will proceed “until such time that a court of law issues an order asking us to halt”.
“That is the approach that we are going with. We are focusing on the aspects that are in our control. We can’t control what the court decides. We will abide by whatever court decision ultimately is made.”
Much is riding on this fencing match between Ramaphosa and parliament — for the president, for the ANC and for the country.
Gana has a constitutional responsibility to uphold as committee chair amid the turbulent political currents swirling around him. In his view, the only way to remain above the toxic fray is to follow the letter of the law.
Ramaphosa says in his court papers that his intention is not to “immunise” himself from constitutional responsibility but to protect his personal image.
“If the impeachment process continues without a resolution of the review application, I will personally suffer irreparable harm. The hearings will allow baseless and unfounded allegations, which may potentially be defamatory, to be made against me in front of the entire country and the international community.
“Regardless of whether I am ultimately exonerated, these potentially defamatory aspersions will permanently damage my reputation. Further, the baseless aspersions made during the hearing will also have a detrimental impact on the standing of the political party I represent,” he says.
At the heart of the matter is the impugned report compiled by former chief justice Sandile Ngcobo, which found there was “prima facie” evidence against Ramaphosa regarding the theft at Phala Phala in 2020 and the subsequent cover-up. The existence of the cash, and its theft, had been revealed by disgraced former spy boss Arthur Fraser.
Ramaphosa and the ANC might have hoped nothing more would be heard about the Ngcobo report after parliament voted against its adoption in December 2022, when the ANC still held an overall majority of seats. But in April this year the Constitutional Court, ruling on an application brought by opposition parties, found that the vote had contravened the constitution.
The saga, which has been seized upon by opposition parties in this election year, marks something of a reckoning for the ANC, which devoted itself for most of Jacob Zuma’s tenure to protecting him from accountability for his many transgressions.
Two Constitutional Court judgments during that period chastised parliament, under former National Assembly speaker Baleka Mbete, for failing in its duty to hold the executive accountable during the Nkandla upgrades scandal. The memory of this unhappy chapter still clouds public perceptions about whether Mbete’s successor, Thoko Didiza, can put her ANC allegiance aside in matters concerning the president.
For Ramaphosa, the affair comes as an unwelcome distraction from the national crises on his plate — among them, the economic harm of the US-Israeli war on Iran and the gathering storm of anti-migrant violence, which has already damaged relations with capitals around the continent.
The strictly legalistic approach both Gana and Ramaphosa are pursuing may be the best option for both of them. But nothing will stop everyone else from piling in as opposition parties sense that Ramaphosa, the ANC’s strongest electoral asset, is vulnerable. The ANC’s instinct will be to protect him — but, mindful of the woeful Zuma history, its parliamentary office-bearers might find themselves in an unwelcome quandary.
Marrian is a political analyst at the Bureau for Economic Research