Trengove: No case for Ramaphosa to face impeachment over Phala Phala
President Cyril Ramaphosa’s legal team has told the Western Cape High Court that there is no sufficient case against him to justify an impeachment hearing over the Phala Phala matter.
Arguing before a full bench in Cape Town on Wednesday, Advocate Wim Trengove SC said the Section 89 Independent Panel failed to apply the correct legal test when it concluded that Ramaphosa had a case to answer over the theft of foreign currency from his Limpopo farm.
The President is seeking to have the panel’s report reviewed and set aside, with the three-day hearing running from Wednesday to Friday.
At the heart of the application is Ramaphosa’s argument that the panel confused a prima facie case with the requirement for sufficient evidence to justify taking the extraordinary step of subjecting a sitting President to an impeachment hearing.
Trengove told the court that the panel had access to Ramaphosa’s response and other evidence, but did not properly assess that material against the allegations before concluding that there was a basis for impeachment proceedings.
"The very essence of my case, the very heart of my case, is that what the panel is required to do is to look at all of the evidence."
He said the panel sometimes referred to the President’s evidence in its report, but failed to weigh it against the evidence implicating him.
The significance of this, Trengove argued, is that a prima facie assessment is not the same as determining whether there is enough evidence to justify proceeding with an impeachment hearing.
He said the panel’s approach effectively amounted to asking whether Ramaphosa had a case to answer, rather than whether the evidence was sufficiently strong to warrant the next stage of the constitutional process.
"It is inherently clear that there is first a prima facie test and then a sufficient evidence test, and that the two can't mean the same thing."
Trengove argued that the distinction is critical because the National Assembly rules deliberately use different terminology at different stages of the impeachment process.
According to his submissions, the first stage involves establishing a prima facie case, while the Section 89 panel was subsequently required to determine whether there was sufficient evidence to warrant an impeachment hearing.
He told the court that the panel should therefore have undertaken a qualitative assessment of all the material before it.
THERE IS NO CASE AGAINST THE PRESIDENT
Trengove went further, arguing that once the correct standard is applied, the evidence does not establish a case against Ramaphosa.
He said the panel was required to consider not simply whether the President did what was alleged, but whether the conduct met the legal requirements for serious misconduct or a serious constitutional violation.
"The sufficient evidence inquiry should in every case ask itself not merely whether the president did it, but also ask itself whether he did what he's accused of having done intentionally and in bad faith."
He argued that these were essential elements of the charges against Ramaphosa.
"Unless there is sufficient evidence of each one of those elements, there is no case against the president, whether of the prima facie or sufficient evidence variety."
Trengove said the panel recognised the requirement of intentional and bad-faith conduct but failed to apply it consistently to each charge.
"The independent panel was aware of this requirement but never applied it to each case."
The argument forms a central part of Ramaphosa’s review application.
His legal team stressed that it was not asking the High Court to decide whether the President should ultimately be impeached. Instead, it says, it wants the court to determine whether the panel acted lawfully and applied the correct test when it concluded that there was a basis for Parliament to proceed.
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