President Cyril Ramaphosa’s bid to have the report that triggered his Phala Phala impeachment inquiry set aside rests, in part, on a court case about a schoolboy suspended from class.
His advocate, Wim Trengove SC, relied on the judgment in the Western Cape High Court on Wednesday as he argued that, contrary to the respondents’ contention, Ramaphosa’s application was not premature.
This despite Parliament’s impeachment inquiry not having been concluded.
Ramaphosa asked the court to set aside the Section 89 independent panel’s report, which found in November 2022 that there was enough evidence for him to face four impeachment charges.
The charges stem from the theft of about US$580,000 in cash that had been hidden in furniture at his Phala Phala game farm in Limpopo in February 2020.
The panel was chaired by former chief justice Sandile Ngcobo.
Its report required the National Assembly to hold a public impeachment inquiry into the charges, which could result in Ramaphosa’s removal from office.
Those opposing Ramaphosa’s application said he should have waited for Parliament to finish the impeachment inquiry before going to court.
On his feet in courtroom 22, Trengove said the panel’s finding had legal consequences for Ramaphosa, making it open to challenge in court.
He referred the court to a case involving a schoolboy who challenged his suspension.
It was argued that the pupil had gone to court too soon because his disciplinary hearing had not yet taken place and the suspension was merely a suspension.
Trengove said the court rejected that argument, finding the suspension could seriously affect the pupil’s future, lead to his expulsion and, on its own, cast serious doubt on his fitness to mix with other children.
“If that goes for a school pupil, how much more is that to our president, who is publicly shamed, publicly humiliated by a prosecution for serious constitutional misconduct?” Trengove said.
“If a school child is protected against that class of damage, then all the more is the president entitled. Not to suspension from school, but impeachment as head of state
The matter is being heard by a full bench of Judge President Nolwazi Mabindla-Boqwana, Judge Mark Sher and Judge Ncumisa Mayosi.
Arguments, which began with Trengove in the morning, were expected to continue until Friday.
The ATM, one of the respondents opposing the application, argued through Adv Anton Katz SC that a court should not interfere in an unfinished parliamentary process unless a party could show that grave injustice would result.
Katz said Ramaphosa’s court papers contained no such claim.
Mabindla-Boqwana asked Trengove what difference there was between the harm already done by the allegations being public and the harm of the president standing trial before the impeachment committee.
Trengove said there were two kinds of harm, and that the latter was the more serious of the two.
“One is the public platform on which evidence is led, which is incriminating and insulting of the president,” he said.
“But there’s another part of it which is more significant.
“The mere fact that the president stands accused by his peers in the national forum of acting unconstitutionally and in bad faith.
“That in itself is an insult which causes pain and reputational harm.”
He said the independent panel was there to protect a president from the serious consequences of an impeachment hearing where the charges were not even strong enough to warrant one.
“A president is entitled to be protected if a panel report does not lawfully determine that there is sufficient reason for a public inquiry,” he said.
“That is the prejudice the president will suffer if he’s deprived of that protection. And it is that prejudice which renders the report subject to review.”
On the merits, Trengove argued the panel had asked itself the wrong question on each of the four charges.
The parliamentary rules allow a president to be impeached only for conduct that is deliberate and in bad faith.
Trengove said the panel had set that requirement out in its own report and had then failed to apply it to any of the charges.
“We’re not going to argue on these charges that the panel asked the right questions but gave the wrong answer,” he said.
“Our argument is a simpler one. They didn’t even ask the question.”
He said the court was not being asked to decide whether the panel had reached the right conclusions.
“You ask the wrong question, it doesn’t matter what your answer is, because you asked the wrong question in the first place,” Trengove said.
“We’re not testing the answers to the question. We’re challenging the question.”