While some among us may not have been looking, our country’s nascent democracy, underpinned by what is widely vaunted as a Rolls Royce constitution, has reached a peculiar epoch.
Three ANC presidents, who all happen to have served two terms as presidents of the republic, are simultaneously engaged in intensive lawfare against the state, seemingly to evade or at least delay accountability, one of the key principles that undergird mature democracies.
In the name of exercising his constitutional rights, sitting President Cyril Ramaphosa is litigating in essence to stop parliament from investigating the major scandal which stems from a burglary at his Phala Phala farm.
The unlikely duo of former presidents Thabo Mbeki and Jacob Zuma, also exercising their constitutional rights, is litigating against the chair of a commission of inquiry which is investigating alleged political interference in the failure to prosecute apartheid killers whose cases were referred to the National Prosecuting Authority by the TRC (Truth and Reconciliation Commission).
Both matters hinge on the constitutional principle of accountability.
In respect of Ramaphosa, this is a particularly instructive development since he is widely credited as the chief architect who ushered in our constitution in 1996 in his then capacity as chair of the constituent assembly.
Today, Ramaphosa the constitutionalist has embarked on a vigorous legal endeavour essentially to block parliament from carrying out one of its primary functions, which is to hold the executive branch of government to account.
His key assault on the report by the Justice Ngcobo independent panel is that it is, as he avers, based on hearsay evidence and untested allegations.
But the panel has not found him guilty of anything.
It merely said he has questions to answer.
For instance, why did he allow for the money to be hidden in his couches for two months before it was stolen?
The astute businessman he is, Ramaphosa certainly knows that foreign currency of the quantum that was kept in his house has, by law, to be declared to the relevant authorities within the prescribed period.
Why was the money not banked for two months?
Is it because it was unbankable since it was not declared to the authorities at the port of entry into the country, as required by law?
Why was there no case docket for more than two years between the date of the burglary in February 2020 and when Arthur Fraser laid a charge in June 2022?
In its recently-declassified Phala Phala report IPID (Independent Police Investigative Directorate) quotes General Khehla Sithole who was the national police commissioner at the time as saying that he only learned about the burglary in the news media after his retirement.
How is it that a national police commissioner can not know about a serious break-in at the home of the head of state when the head of the presidential protection service has a direct reporting line to him?
Clearly the impeachment process is the appropriate platform for Ramaphosa to take the nation into his confidence and answer some of these pertinent questions.
In the other matter, Mbeki has a bit of history with Justice Khampepe whose recusal he is seeking.
In 2002, after travelling to Zimbabwe on a judicial observer mission appointed by Mbeki, Justice Khampepe came back with a report that then-Zimbabwe president Robert Mugabe had stolen the election.
Mbeki, a diehard supporter of Mugabe, apparently took umbrage at the finding and locked the report away, refusing to release it for public consumption.
It would take 12 years of agitation by civil society formations before the government finally released it.
Nonetheless, in 2005, Mbeki did appoint Justice Khampepe again to lead a commission of inquiry into tensions between the Directorate of Special Operations (the Scorpions) and the SA Police Service.
With that history behind them, Mbeki now finds himself litigating against Justice Khampepe.
His gripe against her is that she was involved in its structures when the TRC rejected his amnesty application in 1999.
He argues that she could well be biased against him.
Meanwhile Zuma’s application for her recusal is possibly driven by intense personal antipathy.
In 2021, Justice Khampepe handed down the ConCourt judgement which sentenced Zuma to 15 months in prison for contempt of court.
She further gave the subsequent ruling rejecting Zuma’s application for a rescission of that judgement.
Zuma’s counsel Adv Dali Mpofu SC was moved to remark that it was the first time in our constitutional democracy that an individual was sentenced to a jail term without the benefit of a trial.
And so stands the state of play. If Ramaphosa is unsuccessful with his lawfare he will eventually have to present himself to the impeachment committee.
Mbeki and Zuma will also eventually have to present themselves to the TRC commission, with or without Justice Khampepe chairing.
All in the name of accountability.
Mandla Tyala, Nelson Mandela Bay
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