At the end of the first day of the World Congress for Constitutional Law on Monday, more than 600 lawyers from across the globe gathered in a marquee outside the Constitutional Court to listen to the inimitable storytelling of retired justice Albie Sachs.
Albie, as everybody calls him, didn’t disappoint. He kicked off dramatically, telling the assembled lawyers that they’d stepped into the epicentre of a pivotal moment in South Africa’s constitutionalism.
In particular, he presented his take on President Cyril Ramaphosa’s application for direct access to the Constitutional Court, in which the president asked it to review the decision of a panel set up by parliament in terms of section 89 of the constitution. That panel of three judges was established under rules developed to regulate a presidential impeachment process.
There was a poignant moment when Albie spoke of his warm personal relations with, and deep respect for, the two people central to this saga: the panel’s head, former chief justice Sandile Ngcobo, and Ramaphosa, who had presided over the Constitutional Assembly that produced the constitution.
It was, in fact, almost 26 years to the day since that assembly voted to adopt the constitution, which provides the guardrails against which the conduct of Ngcobo’s panel will be reviewed.
Ramaphosa has now asked the court to set aside the “recommendations” that, “prima facie”, he may have committed a “serious violation” of section 96(2) of the constitution and a “serious violation” of section 34(1) of the Prevention & Combating of Corrupt Activities Act (the corruption act), and that he could have committed serious misconduct by exposing himself to “a situation involving conflict between his official duties and his private business in violation of the constitution”.
In all likelihood, his case may boil down to two legal issues: what constitutes the “admissible evidence” that should have been lawfully considered by the panel; and whether the panel was correct in changing the evidence threshold from “sufficient evidence” to “information that discloses prima facie that the president may have committed” serious violations.
In my view, despite Ngcobo’s impeccable background and authorship of groundbreaking administrative law cases, his panel erred on all four alleged violations
There are other, lesser issues too. These include how to properly interpret the corruption act, as Ngcobo’s panel believed reporting a potential infringement of that act to a presidential protection unit (PPU) officer did not comply with the section on how to report a crime.
Ramaphosa also alleges possible partiality by one of the panellists, senior counsel Mahlape Sello, who recently acted for suspended ANC secretary-general Ace Magashule. And, finally, there’s the issue of whether simply owning a closed corporation automatically means you have performed “remunerated work”.
An error of judgment?
There is no question about holding Ramaphosa responsible. But in my view, despite Ngcobo’s impeccable background and authorship of groundbreaking administrative law cases, his panel erred on all four alleged violations.
Many of these issues are fluid, but to find there could have been a “serious violation” of the constitution is a bridge too far.
On Ramaphosa’s claim that Sello ought to have recused herself, it’s tougher, as legal professionals act for anyone. Still, his apprehension seems valid, particularly as Richard Calland, who was originally due to be on the panel, was pressured to withdraw for similar reasons.
But it is on the question of evidence that the panel’s report will probably fail. The principle of legality limits one to the exercise of authority granted under the law — and the panel had no legal authority to revise its mandate.
It was also bound by the rules of evidence, which require testing evidence for admissibility and then weighing it. Here, it seems to have failed a test set out in Public Protector vs Mail & Guardian, in which the court said one of the critical requirements of a valid investigation is maintaining an open mind.
The requirement of sufficient evidence dictates that the outcome of the panel should have been a pronouncement on whether a sufficient cache of evidence existed that leant against the president, thus constituting a prima facie case. It cannot be reasonable to interpret the section 89 rules to end up with a panel that recommends an impeachment process that is only a fishing expedition.
As for the duty to report a corrupt transaction, section 34(1) of the corruption act says any person who knows — or ought reasonably to have known or suspected — that theft, fraud, extortion or forgery had taken place, “must report such knowledge or suspicion, or cause such knowledge or suspicion to be reported” to the police.
Now, a 2012 amendment says such an offence should be reported to an officer in the Hawks, and a reasonable interpretation should resonate with how people report normal crimes.
Yet the panel disregarded the clause that said someone should “cause such knowledge to be reported” to the police. Reporting a potential crime to the head of the PPU would seem to meet this requirement.
Still, however this plays out, Albie’s narrative this week reminded us that the Constitutional Court has held the line when it comes to South Africa’s fragile transitional democracy by dispassionately dispensing justice to uphold the values of the constitution. Ahead of the constitution’s 26th birthday, we hold our breath for what will play out in this case.
* Madonsela is the director of the Centre for Social Justice at Stellenbosch University and the founder of the Thuma Foundation
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