A flawed report and dangerous precedents – why President Cyril Ramaphosa should not resign

The Independent Panel looking into the Phala Phala matter has failed to deliver a report of the necessary impeccable quality and credibility. For the President to leave office on the basis of this flawed report would be plainly unjust and, moreover, would set an entirely inappropriate precedent.
To remove a sitting President is a drastic step for any democracy.
He or she has been chosen to serve in high office through an election process, and so for him or her to end their term prematurely must be on the sturdiest of footings so as to ensure maximum legitimacy in the constitutional process and so as to not risk undermining public confidence in the democracy.
Accordingly, the integrity of the impeachment process is of paramount importance.
There can be no weak or broken links. Every single one of the steps must be impeccably executed if the public is to be able to trust the process and, thereby, bestow it with the necessary and appropriate legitimacy.
Unfortunately, the Independent Panel has failed to deliver a report of the necessary impeccable quality and credibility.
Hence, Ramaphosa should certainly not resign because of the report of the Independent Panel, which is legally flawed. Here’s why:
First, because of the overriding constitutional scheme. Since removing a democratically elected president is a very big deal. An impeachment process should only get off the ground if there is good reason for it to do so.
Hence, the carefully worded rules that Parliament has put in place. These establish a three-phase process. To avoid egregious or vexatious impeachment processes, Parliament wisely decided that there should be a preliminary investigation by an independent panel of three fit and proper people to decide if there is sufficient evidence of a serious violation of the law by the President and/or serious misconduct.
While there may be other grounds that render it vulnerable to judicial review, such as whether the panel exceeded its authority by considering evidence and matters that went beyond the “tramlines” of the original impeachment motion tabled in Parliament, there is one defect of fundamental importance.
What was the core legal test that the panel needed to apply? The rules say “sufficient evidence of a serious violation of the law or serious misconduct” (in contrast, as the panel notes, to the process in the case of the impeachment of the Public Protector where the rules expressly use the phrase “prima facie”). In my view, “sufficient evidence” is a higher ...