DA takes on Ramaphosa's appointment of judge for ‘Lady R’ probe in Supreme Court of Appeal

The DA’s legal battle against President Cyril Ramaphosa’s appointment of a retired judge to investigate the docking of the Russian vessel The Lady R in Simon’s Town is heading to the Supreme Court of Appeal (SCA).

The matter was brought by the DA and former MP Kobus Marais challenging retired Gauteng High Court Deputy Judge President, Phineas Mojapelo’s, appointment to probe the December 2022 secret docking of the vessel at the Simon’s Town Naval Base.

When reports of the presence of the sanctioned vessel were leaked, questions were raised about the type of cargo it was carrying when it left the country’s shores after three days.

The United States ambassador to South Africa at the time, Reuben Brigetry, claimed South Africa had supplied arms to Russia during The Lady R’s docking, which led to Ramaphosa appointing a panel led by Judge Mojapelo. Advocate Leah Gcabashe SC, former Justice and Constitutional Development Minister Enver Surty to investigate the matter.

This prompted the DA to approach the Gauteng High Court, Pretoria to argue that Ramaphosa could not have appointed a judge to lead the probe as members of the judiciary were independent and not tools of the executive as this was inconsistent with the separation of powers doctrine.

The party wanted Ramaphosa’s appointment of Judge Mojapelo and his acceptance declared constitutionally invalid.

Ramaphosa insisted it was in his constitutional powers to appoint Judge Mojapelo to investigate the docking of The Lady R and that the matter was moot as the DA did not challenge the probe and its findings.

In September this year, Judge Nicoline Janse van Nieuwenhuizen said the DA’s case could lay down a rigid rule that a retired judge may not be appointed to an investigative panel, which she found was a proposition that directly contradicts the Constitutional Court’s jurisprudence, which makes it clear that each case must be determined in its own context.

Judge Janse van Nieuwenhuizen made reference to the case brought by late IFP leader Mangosuthu Buthelezi in 2011 against then Home Affairs minister Nosiviwe Mapisa-Nqakula after the Dalai Lama was denied a visa to visit South Africa.

However, in the Dalai Lama case, the visit was cancelled and the relief would have no practical effect.

“A decision on the legality and constitutionality of the president’s appointment of Justice Mojapelo, to an investigative committee, will not fulfil any discernible purpose as the Buthelezi judgment did.

“Should a similar decision arise in future and before it has been given effect, careful consideration of the complex issues raised in this application will undoubtedly be undertaken at that time,” the judge found when dismissing the DA’s application with costs in September.

However, earlier this month in the DA’s application for leave to appeal, Judge Janse van Nieuwenhuizen stated that the principles applicable to the question of mootness in a constitutional context are complex and having carefully considered the submissions on the party’s behalf she was of the view that its application has prospects of success.

“The applicants are granted leave to appeal to the SCA against the whole judgment and order of this court delivered on September 25, 2025. Costs of the application is costs in the appeal,” she ruled in judgment handed down on December 10.

loyiso.sidimba@inl.co.za