Ramaphosa plays defence

William Saunderson-Meyer on the President's appeal to the ConCourt over the Phala Phala report


Chess is full of them. There’s the English one, the Dutch one and the Sicilian one. 

There’s the Hedgehog and the Monkey’s Bum. There’s even the Old Benoni Defence, which is two centuries old but despite the name doesn’t trace its origin to that nondescript South African town.

However, the greatest of all defences — at least in political chess — IS homegrown. It’s the Stalingrad Defence, the favourite move of a certain disgraced former president and decried by the game’s cognoscenti for years as unsportsmanlike.

Now, shrugging off the previous sneers of disapproval, this maverick play has been embraced by its former critics. The seal of mainstream approval from players, officials and spectators, was its adoption by the despised Jacob Zuma’s successor to the land’s highest office, President Cyril Ramaphosa.  ___STEADY_PAYWALL___

Many South Africans, if not most, heaved a gigantic sigh of relief when Ramaphosa took a leaf of out Zuma’s playbook and earlier this week launched the trusty Stalingrad Defence — using the legal process to impede the legal process. Or, more specifically, using legal technicalities to thwart justice.

The move came after the parliamentary-appointed Section 89 Panel’s inquiry found that Ramaphosa might have committed various impeachable offences related to the strange foreign currency shenanigans on his Phala Phala game farm.

The finding of the three-jurist Panel, headed by a former chief justice, initially caused consternation. The consensus view of the South African public and overseas investors appeared to be that if Ramaphosa were to be forced out of office, the country would be stuffed.

Not because Ramaphosa was innocent, you understand. Not because it would derail his policies or negate his promises — the overwhelming majority of which, almost everyone conceded, had proved illusory over the past three years — but because it would open the door to the Zuma-backing Radical Economic Transformation (RET) faction to have another turn at state looting. 

Ramaphosa defenders argue that it’s a matter of the greater good. With the extra time bought through legal stalling, CR might be able to ensure that the supposedly “good” ANC remains in (sort-of) charge. 

Whatever the philosophical merits of this argument, what made Ramaphosa’s adoption of the Stalingrad Defence more effective than it might have been was that it came after a bluff. His initial response to the Panel’s findings was a feint.

He threatened resignation and then “retracted” it in response to the panicked entreaties of various supportive commentators, legal academics — one of whom initially had been appointed to the Panel but was forced to withdraw because he has long been a cheerleader for Ramaphosa — as well as a steady slide in the Rand on currency markets, reached a supportive crescendo.

Then, in response to the warnings that the Republic would be destroyed if he abdicated, Ramaphosa made it known through his spokesperson that he had “reconsidered”. He would fight on. The Panel’s findings would be challenged in the Constitutional Court. 

In his ConCourt affidavit, Ramaphosa accuses the Panel of failing to reject what he says was inadmissible evidence made public by former spy boss Arthur Fraser. The allegations “are just that: allegations, which are based on speculation, fiction and conjecture,” asserts Ramaphosa. “They are not evidence.”

The powerful teachers’ union, SADTU, was quick to follow suit with its own comic attempt at lawfare. It announced that it would lodge complaints with the Judicial Services Commission against former Chief Justice Sandile Ngcobo and former High Court Judge Thokozile Masipa over their lack of judicial expertise and for being “grossly negligent” in their findings.

Neither of these legal moves has much hope of succeeding. They’re political theatre.

The Section 89 Panel, as I wrote last week, was careful in its report to give the president the benefit of the doubt. The Panel acknowledged that there was a line between presidential misconduct that would be “tolerable” and that which is impeachable. 

It was fundamental to their brief, the Panel wrote, to ensure that the president was “not required to undergo a full-scale impeachment enquiry in circumstances where [he] has no case to answer”. This was especially so given the Panel’s lack of investigative capacity and subpoena powers, in dealing with hearsay.

A parliamentary impeachment inquiry was a “step that must never be taken lightly”. It was “a momentous act”, justified only when sufficient evidence existed to show that he had a case to answer.

The Section 89 report is not an impeachment inquiry. It’s not even a recommendation that there should be an impeachment inquiry. It does no more than carry out Parliament’s instruction to establish whether there are prima facie grounds for Parliament to contemplate the possibility of impeachment. 

The final decision on whether to proceed with an impeachment inquiry or not belongs to Parliament. If Parliament does proceed, it’s the parliamentarians — not the Panel’s triumvirate — who will weigh whatever evidence there is and make a decision on presidential culpability.

And we already know, were the process to reach such an advanced stage, impeachment would almost certainly fail. This week the African National Congress’s national executive committee (NEC) declared its support for the president. Its MPs have been instructed to vote to reject the Panel’s findings if and when they come before the National Assembly.

In effect, what Ramaphosa is asking the ConCourt to do is to dismiss the Panel’s report before the Parliament that requested the report, can consider it. That’s patently unconstitutional and the president’s review application will surely get short shrift from the apex court.

So, why would Ramaphosa follow this seemingly flawed strategy? 

Primarily, it’s to buy time to see him safely through next week’s party leadership election. In that regard, it’s been a success. Barring a massive and highly unlikely conference-floor rebellion, Ramaphosa will be confirmed for a second term. 

But whether or not he serves a full second term, is a different matter. One has a sense that the president is flagging and disengaged. Should the conference deliver an NEC in which the RET faction is weak, he may be ready to pass the baton to a deputy president who shares his vision.

Secondly, it's about shoring up credibility for the time being. 

To describe Ramaphosa’s account of the origin and theft of the Phala Phala millions as having “troubling unsatisfactory features”, as the Panel’s report does, is an understatement. Phala Phala stinks worse than buffalo turds and the stench is likely to get worse. 

Ramaphosa’s RET tormentors have threatened further damning revelations. There are also investigations underway by the Hawks, the Reserve Bank, the Revenue Services, the Financial Intelligence Centre, the Department of Home Affairs, and the Parliamentary Standing Committee on Finance.

But that’s in the distant future. For now, there’s at least an outside chance that the ConCourt might rule in his favour. If not, the delay will already have served its purpose of allowing Ramaphosa and the “good” ANC time to regroup and come up with alternative strategies.  

After all, that’s what the Stalingrad Defence is all about. Playing for a stalemate by steadily eroding the capacity of your opponent to put you in check.

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