Court hears Ramaphosa’s bid to set aside Section 89 panel report

President Cyril Ramaphosa’s legal challenge to Parliament’s Section 89 impeachment process is under the spotlight in the Western Cape High Court, where his counsel, Wim Trengove SC, has argued that the independent panel tasked with assessing the Phala Phala matter was never meant to resolve disputes of fact.

Trengove told the court that the panel’s role was limited to determining whether sufficient evidence existed to warrant further parliamentary inquiry, not to make definitive findings on conflicting versions of events.

The urgent application seeks to halt Parliament’s impeachment process stemming from the 2020 robbery at Ramaphosa’s Phala Phala farm.

“And it is in that context that the rules then say: can you find that there is sufficient evidence for an impeachment inquiry? We submit in that case the panel has to make a positive finding.

So in that sense there is an evidential onus.

The panel has to say to itself, after weighing up the evidence for and against these charges, can I say there is enough of a case, sufficient evidence, to go to an impeachment inquiry? Can I ask you this? Is there a difference between saying the evidence prima facie discloses something, as opposed to saying there is a prima facie case against a person? Isn’t that different? It may not appear to be different, but isn’t that something different? So in a trial where there is an onus and an evidentiary burden, you get the question arising: is there a prima facie case established, which requires an answer?” Trengove says, “That may lead to an evidentiary burden on somebody to shift that prima facie case.

But isn’t, if you have regard for what the panel was saying, weren’t they saying the evidence prima facie discloses? They were not saying there is a prima facie case in evidentiary terms, in terms that are used as we understand them in the cases you refer to.

So in a nutshell, to ask simply: is there something wrong with saying, on the face of it, the evidence discloses this? After I’ve had regard for everything, including the president’s version, I’m of the view that the evidence, on the face of it, discloses this.

That’s different from a prima facie case requiring an answer.” He added, “I respect that.

That is a semantic exercise, because what do they mean in that sentence when they say, is there sufficient evidence, or is there prima facie evidence? Do they mean taking the incriminating evidence at face value, there is a case against the president? Or do they mean, having considered all of the evidence for and against, I think there is enough to go to an impeachment inquiry? And with respect, however one might-they didn’t use consistent language all the time.

So I’m not suggesting that one can pin them on a single sentence.