Ramaphosa meets section 89 panel deadline, paving way for assessment to start

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The Section 89 Independent Panel of experts is expected to officially start its assessment of whether President Cyril Ramaphosa has a case to answer on constitutional grounds from Monday 7 until 17 November 2022.

This comes as Ramaphosa has met the deadline to respond to all the submissions made by some National Assembly Members.

He was given ten days from October 28 until Sunday, November 6, to respond to all the submitted information.

The panel is tasked to assess a draft motion by African Transformation Movement (ATM) calling for Ramaphosa’s removal from office.

ATM leader Vuyo Zungula invoked Section 89 (1) of the Constitution and National Assembly Rule 129 (A) to remove Ramaphosa from office on grounds of serious misconduct and serious violation of the law. This follows the alleged theft of millions of US Dollars at his farm at Phala Phlala in Limpopo more than two years ago. Ramaphosa allegedly concealed the theft.

Panel has ten days left to conclude the assessment

The three-member panel chaired by retired Chief Justice Sandile Ngcobo has thirty days to conduct and conclude its assessment. It started on 19 October and only has ten more days left to conclude its work.

Now that President Ramaphosa has met the deadline on Sunday, the next step for the panel is to consider all the information over the ten-day period starting on Monday 7 to 17th  November.

During the assessment, the panel says it will conduct any additional research required. It will further deliberate on the facts, and write and finalise its report within the ten-day period, before submitting the report to National Assembly Speaker Nosiviwe Mapisa-Nqakula within the thirty-day period of its assessment.

Composition, appointment, functions and powers of the independent panel

The composition, appointment, functions and powers of the panel are outlined under National Assembly Rule 129.

The Rule was developed by the National Assembly Rules Committee in 2018 in response to a successful Constitutional  Court bid by the Economic Freedom Fighters (EFF) versus former National Assembly Speaker  Baleka Mbete on 29 December 2017.

The Constitutional Court ordered the National Assembly put removal procedures in place whenever a Member of the Assembly invokes Section 89 (1) of the constitution to remove a President from office.

In terms of  Rule 129, when a member tables a  motion calling for the removal of a President from office by invoking Section 89 (1) of the Constitution, the motion must comply with Rule 129 (A). Rule 129 (B)  would then dictate that the Speaker may consult the member who initiated the motion to ensure that it complies with the criteria in 129 (A).

Some of the criteria in 129 (A) dictate that a member who wants to initiate a process for the removal of the President in terms of Section 89(1)(a)(b)(c),  should have prima facie evidence against the President for “serious violation of the Constitution or the law, serious misconduct, or the inability to perform the functions office”. All supporting evidence must be attached to the motion which also has to be consistent with the Constitution and the law.

When the Speaker is satisfied that the member complied with all the requirements, the Speaker must refer all the supporting documents to the panel as required in terms of Rule 129 (C). The panel must first be established as dictated by  Rule 129 (D) to conduct a preliminary assessment on a motion initiated in terms of Section 89.

The panel should consist of three fit and proper persons and may include a judge who should collectively possess the necessary legal competence and experience as  Rule 129 (E)(1) requires. The panel is only appointed after consultation with political parties who are required to nominate persons and submit the names to the Speaker. The panel chairperson is appointed by the Speaker who is empowered to do so in terms of  Rule 129 (F).

Panel has Limited Power

Rule 129 (G)(1) (a)  requires the panel to be independent and subject only to the  Constitution, the law, and the rules which must be applied impartially and without fear, favour or prejudice. The panel does not have the power to conduct oral hearings.

The Freedom Front Plus is one of the parties that want to see the Section 89 Independent Panel invite the police to give evidence during its assessment of the Phala Phala matter.

FF-Plus Leader Pieter Groenewald said it would be a futile exercise if the panel does not call some of the police to give information during its assessment.  However, Rule 129 (G)(C)(iv) states that the panel must not hold an oral hearing and must limit its inquiry to the relevant written and recorded information placed before it in terms of the rule.

Some of the parties that have submitted written and recorded information are the EFF and the ATM. The United Democratic Movement (UDM) has only provided written information, including a copy of the supplementary complaint that former State Security Agency Director-General Arthur Fraser has sent to the Hawks.

Discussion on Ramaphosa’s deadline to answer MPs on Phala Phala: