Phala Phala: Gcaleka Defends Her Decision To Ignore Section 89 Findings

TSHWARELO ESENG MOGAKANE|June 30, 2023

Acting Public Protector Kholeka Gcaleka’s legal team has defended the fact that the final report into Phala Phala farmgate ignored evidence that opposition parties submitted to Parliament’s Section 89 panel, which found that President Cyril Ramaphosa had a case to answer.

Today Gcaleka absolved Ramaphosa of any wrongdoing, stating that the president did not abuse his power or fail to declare his personal business interests to parliament.

Last year, an independent panel appointed by Parliament, led by former Chief Justice Sandile Ngcobo, found that Ramaphosa had a case to answer. It also found that the president’s explanation that an amount of $580 000 ended up stuffed inside a cushion on his sofa was part of proceeds for selling buffalo was not satisfactory.

Ramaphosa had told the panel that the money came from a Sudanese businessman, Hazim Mustafa, who later told international media that he had declared the money with the South African Revenue Service (SARS) when he visited South Africa in December 2019.

Ramaphosa had also told the panel that he personally instructed his worker, certain Mr Ndlovu, to hide the money in a cushion on a couch after Ndlovu alerted him he was going on leave and could not risk the money being kept in a safe.

“We think that the president has a case to answer on the origin of the foreign currency that was stolen as well as the underlying transaction for it. There are weighty considerations which leave us in substantial doubt as to whether the stolen foreign currency is the proceeds of a sale,” the panel found.

Despite an independent panel, led by former Chief Justice Sandile Ngcobo finding that President Cyril Ramaphosa had a case to answer on the Phala Phala scandal, Acting Public Protector Kholeka Gcaleka absolved the president of any wrongdoing, stating that he did not abuse his power or fail to declare his personal business interests to parliament.

This year, SARS told the Democratic Alliance that they had no record of any amount of $580 000 that arrived with a Sudanese businessman.

During the question and answer time at Gcaleka’s media briefing earlier today, legal representative Advocate Cornelius Van Der Merwe said they only focused on evidence they collected on their own as the Office of the Public Protector.

“Of course, the Public Protector was also reminded of the findings of the panel by the complaints because they are contradictory to what was found by the Public Protector. We looked at the [Section] 89 report in several manners. First of all, what the panel concluded on was evidence before them. What the Public Protector is required to do is to independently source evidence. We cannot accept the findings of another body as evidence of what the Public Protector is requested to investigate.

“We also looked very carefully at the mandate and the process of the [Section] 89 panel. It is not an adjudicative body. It is a process if there is a case for the president to answer to. The deciding body in that case would have been the impeachment committee. The findings of that panel did not have an evidentiary value around the same issues that the Public Protector is required to investigate in terms of the Constitution. It doesn’t only relate to the [Section] 89 panel, it also relates to the other institutions that are tasked to do this,” said Van Der Merwe.

African Transformation Movement (ATM) President Vuyo Zungula. His party, which is the main complainant in the Phala Phala case, has rejected Gcaleka’s report for omissions committed during the investigation.

The African Transformation Movement (ATM), which is the main complainant in the Phala Phala case, rejected Gcaleka’s report for omissions committed during the investigation.

“The African Transformation Movement (ATM) categorically rejects the legally unsound report just issued by the acting Public Protector. This report, which has been presented to the public, will not withstand even the slightest legal scrutiny. It is fundamentally flawed from its inception to its conclusion. Although the Public Protector has chosen to point at everyone except the president, we assert that the president is unequivocally guilty of a series of crimes including the violation of the Prevention and Combating of Corrupt Activities Act (PRECCA),” said ATM leader Vuyo Zungula.

“According to PRECCA, the president ought to have reported the theft in his Phala-Phala farm to a police officer within the Directorate for Priority Crime Investigation. While the President maintains that he reported the matter to General Rhoode, it is important to note that neither General Rhoode nor Lieutenant General Mfazi is a police officer within the Directorate for Priority Crime Investigation. How the Acting Public Protector missed this, remains a mystery.”

He added that although the Public Protector suggested that the president was not engaged in paid work, “South Africans would also be aware that the president is the sole member of the Ntaba Nyoni Estates CC of which the Phala Phala farm is the operating entity”.

“According to the Close Cooperation Act, the president as the sole member of the Ntaba Nyoni Estates CC must have been involved in the day-to-day operations of his farm. We should remember over and above his admission at the ANC gathering in Limpopo, the President was also the one that communicated with buyers, even going as far as to direct which animals should be taken and which should be left.”