Budlender argues that Ramaphosa did not intend to break the law

Legal counsel for President Cyril Ramaphosa has argued that the National Assembly was correct not to adopt the Section 89 independent panel report in the Phala Phala matter as it was fundamentally flawed.

Advocate Geoff Budlender has been arguing before the Constitutional Court in Johannesburg on Tuesday.

The Economic Freedom Fighters (EFF) is challenging the National Assembly’s decision not to adopt the Section 89 report that found that there is a prima facie case for which the president must answer in relation to the theft at his Phala Phala farm.

Budlender argues that Ramaphosa did not have the intention of breaking the law.

“But even if one assumes, for the sake of argument, that its interpretation is the correct one, that doesn’t answer the question whether the president deliberately and in bad faith adopted the wrong interpretation of the term ‘paid work’,” argues Budlender.

“The President’s farming activities have never been a secret. He’s published a book of photographs of the particular breed of cattle in which he has a particular interest. It seems very unlikely that he deliberately and in bad faith ignored the law and then published his activities. Perhaps more likely is that he genuinely thought that he was entitled to act as he did and he lacked dolus and bad faith. Again, the question is not whether the president’s interpretation was right or wrong, it is whether his interpretation was in bad faith,” adds Budlender.

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Advocate Andrew Breitenbach for the National Assembly and the Speaker has argued in the Constitutional Court that the legal challenge launched by the EFF is moot due to the time that has lapsed since the Section 89 report on Phala Phala was not adopted by the National Assembly.

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Breitenbach has argued that the relief sought by the EFF in the Phala Phala matter if granted, would be a breach of the separation of powers principle.

The EFF has argued that when a Section 89 panel finds prima facie evidence against a sitting head of state, the report should be sent directly to the Impeachment Committee instead of being debated in the National Assembly.

However, Advocate Breitenbach submitted that this would give a third party the power to encroach on the processes of the National Assembly. He says the relief sought by the EFF falls outside the parameters of judicial authority.

Meanwhile, the African Transformation Movement (ATM)’s lawyer has argued that it was irrational for the ANC to rely on the completion of the investigations that looked into the conduct of President Cyril Ramaphosa.

Advocate Anton Katz has submitted that it was irrational for the ANC to vote against adopting the Section 89 independent panel report on Phala Phala on that basis.

Katz has submitted before the bench of the Constitutional Court that only the National Assembly has the Constitutional mandate, to look into the impeachment of a Head of State and not the other bodies the ANC relied upon.