Delaying tactics?

追加: 2026-05-18

[00:00:00]Hosa hosa hosa. Welcome to another episode of the dissection. It's a drama.

[00:00:05]It's a movie. It's a telenovilla. It's a World Cup final. It's an AFCON final.

[00:00:11]And Morocco and Sagal are playing in extra time. Today was a very busy day in the National Assembly in the courts. And to top it all off, the president gave an announcement. and president of South Africa gave an announcement saying that he will be taking the section 89 panel report on review. So before I play you what he said, I'm going to explain somewhat of what a review process entails and then I'm going to explain to you after I play his clip what are the prospects of that review being successful. What does the case law say about that review? And then I'm just going to give you my personal opinion on the review which I think is a time buying strategy and it's likely to be challenged by the other political parties. It's likely not to succeed at the end. Uh but I think that it will have bought enough time for the president to get to the um next conference of the ANC. That's looks like the strategy. So let's start with where is my source material coming from cuz we're talking about presidents here.

[00:01:11]We're talking about serious stuff. This textbook primarily deals with constitutional law. It's the fifth edition, one of the prescribed textbooks at Vitz University. Let me just bring it up real close there so you can see it.

[00:01:23]Right, that's the first textbook. The second textbook is this one here, Administrative Law in South Africa by Kora Hookster. And that is the one that deals with the issue of review. A third textbook that I just sometimes look at is South African constitutional law in context. So th this is the source material for anything that I say in this particular episode. So what is a review?

[00:01:47]The distinction between appeal and review. Appeal and review are both ways of reconsidering a decision. While the reason for seeking one or the other will usually be the same, that is dissatisfaction with the result. Appeal and review perform different functions.

[00:02:00]Appeal is appropriate where it is thought that the decision maker came to a wrong conclusion on the facts or the law. It is concerned with the merits of the case. meaning that on appeal the second decision maker is entitled to declare the first decision right or wrong. Review by contrast is not concerned with the merits of the decision but whether it was arrived at in an applicable and sorry in an acceptable fashion. As the Supreme Court of Appeal has indicated the focus is on the process and on the way in which the decision maker came to the challenge conclusion. In this case, we have an interim decision saying go ahead and set up an impeachment committee panel or whatever you want to call it, right? And this decision is reached at by a retired constitutional court chief justice, a retired high court judge to Masipa and a acting a practicing advocate MPO. These are not junior um legal practitioners.

[00:03:00]These are highly esteemed legal practitioners. It is my opinion that they did follow all of the procedure.

[00:03:06]But as it goes on in explanation, instead of asking whether the decision was right or wrong, a court of review concerned it concerns itself with issues such as the impartiality of the decision maker, the admissibility of the evidence taken into account. Significantly, a decision may be set aside on review even if the court is confident that the same decision would have been reached by an impartial decision maker on the proper evidence. An indication that the focus is not on the merits, it's on the process. Right? Going further, thus the question on review is not whether the record reveals relevant considerations that are capable of justifying the outcome. That is the territory of appeal. Thus the question on review is not whether the record reveals relevant considerations that are capable of justifying the outcome. That is the territory of appeal when the question is whether the decision was correct or incorrect. Okay. So that's what you need to know. The South African courts have been anxious. Hookster emphasizes in her chapter on this that they have been anxious to uphold the distinction between appeal and review. Now there are different types of review right I'm going to go through the five that are the most common review of the proceedings of inferior courts that's type one type two automatic review type three judicial review in the constitutional sense type four judicial review in the administrative law sense type five special statutory review. So the judicial review in the administrative law sense is the one where I think this particular issue falls into judicial review in the administrative law sense. In administrative law, judicial review refers more specifically to the power of the courts to scrutinize and set aside administrative decisions or rules on the basis of certain grounds of review. This type of review is regulated indirectly by section 33 of the constitution and directly by the pa the promotion of administrative justice act. Now this is what the president had to say.

[00:05:16]The judgment has given rise to much commentary, debate and speculation.

[00:05:24]There's been much concern and uncertainty in the country over the last few days following the delivery of the constitutional court judgment.

[00:05:36]When I assumed office of president of the republic of South Africa, I said that it was a responsibility that I would discharge with the greatest care.

[00:05:49]There have been calls from certain quarters calling on me to resign.

[00:05:55]At the same time, there have also been a number of calls for me not to resign.

[00:06:03]I therefore address you this evening to clearly state my position.

[00:06:10]The matter before the constitutional court arose from the report of an independent panel that was appointed by the National Assembly in September of 2022 in terms of section 89 of the constitution of the republic to conduct a preliminary inquiry into certain allegations that had been made against me.

[00:06:34]These allegations related to a theft that took place at my farm in February 2020.

[00:06:43]The independent panel concluded that the information that was presented to it disclosed primmaasia that the president may have committed serious misconduct and a serious violation of the constitution.

[00:07:00]The panel concluded that as the president may have acted in a way that was inconsistent with my office, I expect I accept and respect the constitutional court's ruling.

[00:07:15]I reiterate my firm commitment to the constitution, the independence of the judiciary and the rule of law of our country.

[00:07:27]Since the judgment was handed down, I have reflected on what the judgment means for our country, for the rule of law, and for the office that I occupy.

[00:07:42]I am mindful of the severe difficulties that the country is confronted with today.

[00:07:48]I'm also mindful of the need for stability at this time more than any other.

[00:07:56]At times of such uncertainty and contestation, our constitution must and remains our guide.

[00:08:06]The drafts of the constitution provided a clear, carefully considered process to deal with allegations of serious misconduct and a serious violation of the constitution against the president.

[00:08:21]They foraw that it would be necessary to provide recourse in the event that these allegations could be established while at the same time protecting against speurious or malicious agendas.

[00:08:39]Since a criminal complaint was laid against me in June 2022, I have consistently maintained that I have not stolen public money, committed any crime, nor violated my oath of office.

[00:08:58]From the beginning, I said that I would cooperate with all institutions that are mandated to deal with these types of matters. I have indeed cooperated with all investigations and inquiries into this matter. I will continue to cooperate with all institutions that are mandated to deal with all these matters. When the independent panel submitted its report in December 2022, I said that I disagreed with its findings and the process of reasoning that led to those findings.

[00:09:38]In my submission to the panel, I said the complaints against me are based on hearsay allegations.

[00:09:46]No evidence, let alone sufficient evidence, has been presented to prove that I committed any violation, let alone a serious violation of the constitution or the law or serious misconduct as set out in the constitution.

[00:10:04]As a consequence, I decided then to approach our courts to take the report of the independent panel on on review.

[00:10:14]I was advised by my legal team that the panel report was capable of being reviewed by a court of law on several grounds, including the misconception of its mandate, grave errors of law, and unfounded conclusions of fact.

[00:10:34]However, the outcome of the vote of the National Assembly in 2022 stopped the process of further examination through a review of the report resulting in the report having no practical or legal consequence.

[00:10:53]I therefore did not proceed at the time with the review of the panel's report as the National Assembly had taken a decision on the matter.

[00:11:05]However, I did say at the time that I reserved my right to institute review proceedings against the panel's report should circumstances change.

[00:11:19]The constitutional court judgment last week means that the report of the independent panel now has legal consequence as it now stands to be placed before the impeachment committee.

[00:11:32]As a court ruled, the independent panel's recommendation to proceed with an impeachment inquiry must be implemented unless and until the report is set aside on review.

[00:11:46]on the basis of advice from my legal team and as visaged by the constitutional court when it said unless and until the report is set aside on review.

[00:11:57]I have therefore decided to proceed to take the independent panel's report on review on an expeditious basis.

[00:12:06]I do so not out of disrespect for Parliament or its processes, but to affirm the need for such findings to be correct in law and in fact, especially where Parliament's work will be based on and informed by a report I believe is flawed.

[00:12:27]I do so out of respect for the constitutional court judgment and the principles of judicial review that it reiterates and reinforces.

[00:12:38]I also do so in fulfillment of the rights and obligations and processes contained in our constitution.

[00:12:46]Critical to the review question is whether the report itself is a final report or an interim report. What is the nature of the report? Because this will have a bearing on whether the courts will entertain the review application or not because courts are not just going to let you you know create a loophole for yourself in a disciplinary process in a process which is supposed to be factf finding and to kind of circumvent that just willy-nilly. So it's important that they understand whether it's an interim report or a final report and whether your application for review is then justifiable or justified. Right? So this report that we are considering the section 89 panel report is not a final report. It's an interim report. Right?

[00:13:36]making a recommendation that there ought to be a further thing which will come up with a final report. In Ismile and others versus additional magistrate Weinberg and another in this authority, the court reaffirmed that superior courts should not ordinarily interfere by way of review with interlocatory decisions in uncompleted proceedings.

[00:13:59]Right? So superior courts should not ordinarily interfere with incomplete decisions in uncompleted proceedings.

[00:14:07]This principle is not absolute. However, the appellet division held that interlocatory rulings may be reviewed only in exceptional circumstances, namely where the irregularity number one goes to jurisdiction or number two goes to a gross irregularity in the proceedings and number three results in an injustice that cannot be cured by an appeal after the final judgment. In Ismile, the court emphasized that gross irregularity does not mean an incorrect decision or a misinterpretation of the law. Instead, gross irregularity arises where the litigant has not been afforded a fair trial or hearing in accordance with the principles of justice. A critical principle is that review may be justified where the prejudice suffered cannot be cured by appeal after conviction or judgment. Put differently, if an injustice caused by the interlocatory ruling can be remedied later, review is inappropriate, review is reserved for irreparable or structural injustice. This is what the president will have to then prove and it has been confirmed by the constitutional court in several judgments such as state versus western areas limited and others 2004 2005 case for example. All of this is to say it's not clear whether this particular remedy or this particular tactic or strategy will actually work for President Ramaposa. It appears to give him enough time to say to the uh impeachment committee, well, I'm taking this thing on review, so let's pause all of the impeachment committee stuff until we've complete the the review application. But it's it's important to remember that President Ramaposa said he was going to take the section 89 panel review panel report on review previously. He said that already and he didn't do it because he withdrew that application and said that the issue had been rendered moot by the vote. So there's a circular reasoning which is happening here. I'll explain it now. The reasoning being presented appears to be circular. The National Assembly voted on the basis of the president taking the section 89 panel report on review.

[00:16:24]That's what the ANC members in the National Assembly uh relied upon. They criticized the section 89 panel report on the basis that they said it was legally flawed. Ronald Lamoola, for example, was one of those people. But now that the president had the opportunity to take the matter on review, he then withdrew the review application saying that the vote by the National Assembly had rendered the issue moot. So the National Assembly says, well, the president is going to take it on review. Let's vote no for now. Then the president says, well, I'm not taking it on review because you've now voted no. So that's a classic example of the fallacy of circular reasoning or circular logic, right? So this is where we find ourselves now. The president years later then comes back and says, "I'm taking it on review again." So there may be some issues for him as a result of that particular approach. To be honest, this does have the same flavor or scent as the argument that Jacob Zuma is using Stalin's strategies to avoid legal accountability, transparency, and openness. This is something that the foundations would would make the legal commentators would make and say Jacob Zuma is using Stalin GRA strategies. Every time that Jacob Zuma said well I have legal rights I want to explore my legal rights. they would say no why Stalinrad why the Stalinrad and now we are seeing another version of Stalinrad you know I don't know what you want to call it um how you want to spray it what flavor of port puri you want to put on the uh scent of stalenrad strategy but it does actually appear that this is another form of stalenrad Mr. Raaposa withdrew the review himself to then resuscitate it at this point. Pa requires that you actually have a reasonable time frame to apply for a review. So there's been an unreasonable delay which you'll have to argue and motivate before the court. He has to give a good reason for that particular delay. He can't simply say well the constitutional court ruled uh against my interest and now therefore I've come back with the review application that I myself withdrew. He has to come up with the reason. So this may actually fail on the basis of delay.

[00:18:36]It may also fail on the grounds that there's no gross irregularity in the proceedings.

[00:18:44]There's been nothing in what the section 89 panel did which was unfair to Mr. Ramaposa. It's critical, I think, and I think the media is doing this deliberately, to not look at the section 89 report page by page, detail by detail. It's not a long report. It's 89 pages, easy to summarize, easy to digest. You've got sandbo, you've got to masipo, you've got mashel um on on that panel, they make requests to the president. They ask for documentation.

[00:19:12]They ask for the witnesses. Hassim Mustafa is not availed to them.

[00:19:15]Sylvester Dvu is not availed to them. Um various documents that they need are not availed to them. But nonetheless, they continue with their process. They say, "Hey, we've ascertained and News24 also confirms today in their reporting that the money in the sofa was not actually um $580,000.

[00:19:32]It was significantly more." And by the way, the reporting from News24 and others relies on the um evidence which was presented in the criminal trial of Emmanuela David and the other people who stole the money uh Hawks investigator they ascertained from the bank records of Emanuel David that he had much more than the 580,000 which was stolen in the couch. This is critical because the whole explanation which was provided to the section 89 panel was there was only 580,000. It was for the buffaloos. Hazim Mustafa didn't collect his buffaloos.

[00:20:02]Two years later, nothing had done had moved in terms of buffaloos. That's the money that was stolen. But it looks like there's more. The change has not been accounted for. What about the change in the sofas? What's going on with the Joshua door banking? Then there are the, you know, reserve bank laws around uh storage of foreign currency, laws around trade in foreign currency. All of these things are still issues which do need to be ventilated. So there's no issue of jurisdiction, there's no gross irregularity. The only argument in the president's favor is that you know you can make a review application on an interlocatory um decision if the injustice cannot be cured by appeal after the final judgment. So after there's a final decision of the impeachment committee, it still goes to vote in um the National Assembly. That's not the same as an appeal, but he may make an argument that this is so serious. It's a presidential decision. at least I ought to have um the right to a review application. So that's the only thing that I can see based on um the textbooks that I referenced and the case law that I've referenced which kind of works in his favor. So an interesting note though also around this issue today Gordon Hill Lewis told Clement Mñateella on the Clement Mñatella show that members of the business community have been calling him over the weekend to suggest to him that the DA must not vote to impeach the president even if the impeachment committee finds against the president.

[00:21:27]He said he disagrees but this shows of course that there's a move in different circles and spaces to try to curtail the outcomes of the impeachment committee. I found that to be a little bit hypocritical from the business community because the business community came together to launch an entity called Save South Africa. Later some of the same people formed an entity called defend our democracy. Both of these entities took the moral high ground against corruption, mismanagement among other issues. So now when they come around and say, well, we're not so concerned about money and sofas. We're not so concerned about this other stuff. That doesn't would they say the same thing if it was Jacob Zuma? If the Guptas were said to have given Jacob Zuma $800,000 US dollars that he put in the gangla chicken hand or the chicken coup or whatever and then you know if they found out that Gandha had $800,000 um lying around would they say no we don't care it's private money we're not interested. I think it's hypocritical to insist on moral standards when it comes to Jacob Zuma but to then speak in terms of real politics when it comes to another candidate. So the GNU calculations the interest just to say look stability over everything. It's not to say that if this impeachment committee went on there are no options for the ANC. The ANC have got many uh leaders within that organization who are capable, ready, who are businessfriendly, business acceptable even. It's not only the false dichotomy is that either you have impeachment committee and then you get Paul Mashhatid or you have no impeachment committee and then you continue with U and Paul Mashhatille is the one who comes with the coalition what is it called doomsday coalition of MK and EFF.

[00:23:05]That's a false dichotomy. Presenting a situation as if there are only two alternatives when there are multiple alternatives is a fallacy known as the false dichotomy. Where do I get that?

[00:23:13]Let me show you. This book here, Informal Logic by Iving Copy and uh Keith Jackson. So that's the source for all of the fallacies that I've been telling you about. And if you're interested, that would be um chapter 3. I'm saying this cuz I don't want any problems. I don't want people to say this is not research. This is this is we are researchers here. Please asabl we we are researchers. Please please please. So there you go. That's the episode based on these four uh textbooks uh which you can also purchase at any good uh Lexus what is what is the name of that shop? Um I can't remember.

[00:23:53]Let me not just recommend a bookstore without them you know plugging plugging a homie. So you can get them at any any good bookstore that sells textbooks. So those those are my views. Let's cut the episode here. I will try to incorporate some reflections on the court thing that happened with the generals and anything else. I thought let me just try to break it down in that respect. So that's where things are. What do you think? Let's have a conversation in the comment section.