President Cyril Ramaphosa has denied his appointment of a retired judge to investigate the docking of the sanctioned Russian cargo vessel Lady R in Simon's Town threatened to entangle the judiciary "in matters of political controversy" and posed a risk to its independence.

"There is no risk of judicial entanglement in matters of political controversy," Ramaphosa states in papers filed in the Gauteng High Court in Pretoria, in response to a Democratic Alliance (DA) legal challenge to his appointment of retired Judge Phineas Mojapelo to head the Lady R investigative panel.

Mojapelo and his panel were appointed to investigate the docking of the sanctioned Lady R vessel at Simon’s Town in December last year, after United States ambassador to South Africa, Reuben Brigety, said he would "bet his life" that weapons destined for Russia had been loaded onto it.

During a press conference in May, he said the US had "proof" of this.

Advocate Leah Gcabashe SC, and former deputy minister of basic education Enver Surty were the remaining panel members.

While acknowledging that he could have appointed a commission of inquiry to investigate the Lady R docking, Ramaphosa is adamant "this would have not been appropriate in the circumstances".

"In particular, mindful of the public nature of commissions of inquiry and the national security concerns in this matter… I was advised that a commission of inquiry [would] not be well-suited to an investigation which was likely to involve classified information, nor did I wish to set a precedent that would erode the public nature of commissions of inquiry.

"Given the seriousness of the matter and its potential constitutional and diplomatic consequences, I determined that it was necessary to appoint a credible and independent panel whose integrity was beyond question," he said, before adding that he believed appointing a judge to head the panel "would serve the interests of independence and impartiality".

The president reiterated that the terms of reference that defined the parameters of the panel’s investigation into the 6 December 2022 docking of Lady R at the Simon's Town Naval Base were to remain secret because making them public "would have created a risk to national security".

"I also highlight that my decision that the panel's full report would not be made public was not one that I reached in advance of receipt of the report," he added.

"It was deliberately based on the content of the report, which would create a threat to national security if disclosed to members of the public."

Ramaphosa also claims he had decided that the docking of Lady R needed to be investigated before Brigety made his accusations.

Months after it was established, the Mojapelo panel found that available evidence only confirmed the unloading of cargo from the vessel, and that nothing was loaded.

"Despite some rumours that some equipment or arms were loaded on the Lady R, the panel found no evidence to substantiate those claims," the executive summary of the report states. It has not been released in its entirety.

According to the independent panel report's executive summary:

"The vessel [Lady R] and those who assisted it contravened a number of provisions that relate to commercial vessels docking at South African ports, including SARS designation of a port of entry. The panel made recommendations in relation to the future management of foreign vessels' docking at South African ports. 

"The panel also made findings and recommendations relative to the National Conventional Arms Control Committee (NCACC), communication between ministers, government officials, the failure to write reports and to keep the president abreast of matters of national importance." 

Crucially, the executive summary does not detail what provisions of the law were violated by the Lady R docking and by who – and the secrecy around this report will ensure that no one is publicly held accountable for those alleged infringements. 

Significantly, on the question of why Lady R's transponder had been switched off, the report's executive summary states:

"The panel was informed that, as a result of the urgent circumstances in which the docking at Simon's Town was procured, and the tracking of the vessel by foreign intelligence agencies, the vessel switched off its automatic identification system transponder." 

The panel also found that the goods delivered by the Lady R were equipment for the South African National Defence Force (SANDF), which it had ordered through Armscor in 2018 from a company based in the United Arab Emirates. 

The equipment, which the panel said it could not divulge because it is classified, was said to have been delayed as a result of the Covid-19 pandemic.

The DA's spokesperson on defence, Kobus Meyer, has pointed out, however, that all arms and ammunition imports and exports have to be documented in the NCACC quarterly and annual reports and questioned the panel’s secrecy around what exactly had been offloaded.

He says the NCACC annual report revealed that no import permits had been granted for the purchase of equipment from the UAE – a fact that raises serious questions about the explanation offered in the independent panel’s executive summary.

The DA is not, however, seeking to challenge the panel’s report.

In court papers, the party's Glynnis Breytenbach instead contends that the panel’s investigation process was fundamentally tainted by Ramaphosa’s decision to appoint a retired judge to head it – and must therefore be overturned.

"The president cannot appoint a judge to conduct his investigation," she argues.

"Judges are independent. They are not tools of the executive branch. It is inherently inconsistent with the separation of powers for the president to appoint, and for a judge to accept, an appointment to conduct this type of executive investigation."

Breytenbach further argues that "[t]he legitimacy of the judiciary ultimately depends upon its reputation of impartiality and independence from the other branches of government" and the executive is "constitutionally precluded from borrowing that legitimacy and independence to cloak its functions and work in the neutral colours of judicial action".

"It follows that the president’s conduct in appointing retired Justice Mojapelo and His Lordship’s conduct in accepting the appointment were constitutionally invalid," she states.

"This application does not challenge the outcome of the [Lady R] investigation. It does not matter what the outcome is. Nor [does the DA] allege that the panel is part of any form of cover up. The complaint is a principle one – a judge should never participate in an investigation at the instruction of, and under the control of, the executive."

The DA is adamant that, while Ramaphosa could have established a commission of inquiry to investigate the Lady R docking, it was not legally permissible for him to appoint a retired judge to head an investigative panel "as an agent of the president".

While Mojapelo has chosen not to oppose the DA's application to have his appointment set aside, Ramaphosa has – and is emphatic there was "nothing constitutionally untoward" about his decision to appoint Mojapelo to head the Lady R investigative panel.

In any event, the president argues, the DA's litigation is "moot" as the Mojapelo panel completed its work in September. He also questions why, when the judge’s appointment was known about months ago, the party was only seeking to challenge it now.

According to Ramaphosa, the composition of the Lady R panel "is of no consequence to anyone or the nation at large", as it had "completed its task and no longer exists".