By Professor Sipho Seepe
The National Prosecuting Authority’s decision not to prosecute President Cyril Ramaphosa regarding his handling of the Phala Phala scandal is no surprise. “See no evil, hear no evil, and say no evil” has become a modus operandi in matters involving President Ramaphosa. This behavioural pattern cuts through every aspect of South African society, starting with the mainstream media, invested foreign and domestic capital, the so-called civil society, the public protector, and arguably some in the judiciary.
Understandably, the stakes are high. As per the resolution of his party, Ramaphosa would be forced to step aside should he be charged by the NPA. This would lead to a collapse of government. For those whose appointments are (in)directly political, it would be career-limiting and tantamount to biting the hand that feeds you. But, as always, the truth has a way of coming out.
In his incisive article “No Accountability in the Ramaphosa Administration” (Sunday Times, January 10, 2021), author and veteran journalist Justice Malala let the cat out of the bag. Highlighting the instinctive tendency of the mainstream media to shield Ramaphosa from accountability, Malala avers.
"It must be nice to be in President Cyril Ramaphosa's administration. Imagine we were back in the year, say 2016, and a virus had come along and killed thousands of South Africans...Jacob Zuma, president at the time, would have been eaten alive. Not so in the age of Ramaphosa. This administration, after a spectacular shambles in the handling of the vaccine rollout and a clear lack of strategy, is continuing in its opaque ways, with little or no noise from most quarters. There is no accountability, no taking responsibility, and no consequence."
The decision of the NPA not to prosecute Ramaphosa vindicates parliament’s Independent Panel’s observation and conclusion that "there was a deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly [and that] the misconduct based on violations of the provisions of section 96(2)(b) and the violation of section 34(1) of PRECCA were committed to keeping the investigation a secret." The panel further stated that the "President abused his position as Head of State to have the matter investigated and seek the assistance of the Namibian President to apprehend a suspect."
Indeed, had it been former president Jacob Zuma, the likes of Kriegler’s Freedom Under Law, Ahmed Kathrada Foundation, and CASAC would have come out of the crevices of the woodwork hopping mad? By now, they would have hastily approached the courts to review the decision of the NPA.
Under the pretext that the matter is before the Constitutional Court, the ANC used its majority to vote against a motion to establish an ad hoc committee to investigate matters relating to the break-in at President Ramaphosa’s farm. Such an investigation had the potential to lead to the impeachment of President Ramaphosa. Opposition parties - DA, EFF, IFP, FF Plus, ACDP, UDM, ATM, and PAC – except GOOD, which at the time was rewarded with a ministerial position – voted in favour of the motion. Time will tell whether the DA, IFP, PAC, FF Plus, and UDM who are all in the warm embrace of the government of national unity would still have the appetite to call Ramaphosa to account. On that, one would be foolish to hold one’s breath.
As I have argued before, even in those instances where Ramaphosa was willing to volunteer information, he did himself a disfavour. Responding to emerging concerns on Phala Phala, Ramaphosa reported to an ANC gathering. “I would like to say that I’m a farmer. I am in the cattle business and the game business. And through that business, which has been declared in Parliament and all over, I buy, and I sell animals. Sometimes people buy these animals – I do it yes, though, the sales are sometimes through cash or sometimes through transfers... And so, this that is being reported was a clear business transaction of selling animals.”
Ramaphosa did not end there, in an address to Ankole farmers, Ramaphosa excitedly told his audience that the job of being President of South Africa was “just a nice one to have”. His passion lay in being the President of the Ankole society.
These admissions placed him on the wrong side of the Constitution section 96 (a) which forbids members of the Cabinet from undertaking any other paid work. Regarding this, the independent panel of parliament found him to have contravened section 96(b) which prohibits members of the cabinet from “acting in any way that is inconsistent with their office or exposing themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.”
Where does this leave the country? For now, all eyes will be on the Constitutional Court which has agreed to hear EFF’s application which calls for the impeachment of President Cyril Ramaphosa in the Phala Phala scandal.
Advocate Vuyani Ngalwana SC, who has frequently acted as a judge, had also approached the court to address the NPA’s seeming reluctance to charge President Ramaphosa. Laying his case before the high court was unequivocal in his argument.
“You have a decision, or a recommendation of an independent panel led by no less than a Chief Justice that finds at Paragraph 264 of its report that the Applicant prima facie, may have made himself guilty of a criminal offence on Section 34 of PRECCA. A criminal offence, and the matter goes to Parliament, and Parliament whitewashes it and says there is nothing to investigate. It goes to the Police the Police say they are investigating, what are they investigating? There is a prima facie finding by luminaries in the field of Law. All that is required to start a prosecution is a prima facie basis for the charge, not a reasonable doubt. The prima facie basis is there –but has the Prosecuting Authority taken that up to prosecute? No. Does one come to your Justices, to review the decision of the NPA not to prosecute?”
With the NPA having made its decision, aggrieved and concerned parties can now approach the court to review the decision. In his submission, Ngalwana goes further. He argues that the courts should be able to act in those cases where the prosecuting authority displays prosecutorial inertia, prosecutorial insouciance and prosecutorial partiality.
Ngalwana contends that “the Court should, using Section 173 of the Constitution be able stuck in there and say, we cannot allow the very Prosecuting Authority that seems to have an interest in not seeing the accused person prosecuted be the one who has to issue the so-called certificate nolle prosequi. The court should have that power to itself, as in Canada, itself issue a summons, and say there is a prima facie case for prosecution here. It wouldn’t be overreach; it would be judicial use of the powers at its disposal in the form of Section 173 of the Constitution. That is all we are saying.”
Ngalwana SC has laid the basis for the review of the decision of the NPA not to prosecute President Ramaphosa. Will the self-appointed custodians of our constitutional democracy rise to the occasion? Again, don’t hold your breath.
* Professor Sipho P. Seepe is a Higher Education & Strategy Consultant.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.