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Parties want public protector's Phala Phala report reviewed and set aside

Andisiwe Makinana Political correspondent
Acting public protector Kholeka Gcaleka has raised the ire of political parties. File photo.
Acting public protector Kholeka Gcaleka has raised the ire of political parties. File photo.
Image: Freddy Mavunda/Business Day

There's going to be a race to the high court, with political parties wanting the public protector's report which cleared President Cyril Ramaphosa of wrongdoing in the Phala Phala scandal reviewed and set aside.

Reacting to the document, released on Friday, the African Transformation Movement (ATM), which laid the complaint about the matter with the public protector, and the DA announced their intentions to approach the court.

DA leader John Steenhuisen said the party will consult its lawyers as it believes the report contains a number of misinterpretations of relevant legislation and presents a worrying lack of evidence that the public protector's office seemingly failed to source.

He described the report as “nothing more than a whitewash of the entire sordid Phala Phala scandal”.

Ramaphosa was accused of covering up the burglary and theft of money from his game farm in February 2020.

Deputy public protector advocate Kholeka Gcaleka found the president did not violate the Executive Ethics Code. She investigated whether Ramaphosa declared all his interests, whether he had a conflict of interest pertaining to his constitutional obligations vs his private interests and whether he abused his power by reporting the theft to his head of security and not the police.

“By burying the merits of this investigation in legal jargon and semantics, and contorting the law in her interpretation of the Executive Members Ethics Act and the constitution, she has attempted to paint President Cyril Ramaphosa as nothing more than an innocent bystander to the Phala Phala scandal, oblivious to the workings of the Presidential Protection Services, his responsibilities as the head of South Africa’s national executive and his duty as the first citizen of the nation,” said Steenhuisen.

“This report could only be described as a pro-Ramaphosa public relations exercise.”

He added that Gcaleka, who is acting public protector in place of suspended head of the office Busisiwe Mkhwebane, was vying for the top job and her report read more like a job interview than a concluded investigation. TimesLIVE could not independently confirm whether Gcaleka has applied for the job.

The DA will ask its lawyers to consult the Nkandla report for any potential legal precedent to point out the discrepancies in Gcaleka’s findings, Steenhuisen said.

“It is also gravely concerning to note the discrepancies between the Nkandla report, whose interpretation of similar laws found former president Jacob Zuma was severely compromised as president of the republic, yet Cyril Ramaphosa is seemingly assessed by different standards.

“Most worrying is the insidious weakening of South Africa’s institutions as the very last bastions of accountability in our young democracy.

“Should the office of the public protector indeed be captured, the DA will work tirelessly to ensure our democratic institutions are rid of any political influence to ensure the principles of accountability and equality before the law are always upheld.”

The ATM rejected Gcaleka’s findings as “legally unsound”.

“This report, which has been presented to the public, will not withstand even the slightest legal scrutiny,” said the party's Mxolisi Makhubu.

“It is fundamentally flawed from its inception to its conclusion.”

Makhubu said while Gcaleka chose to point at everyone but Ramaphosa, the ATM believed the president was guilty of a series of crimes, including violating the Prevention and Combating of Corrupt Activities Act for failing to report the matter to the Hawks and the constitution for undertaking paid work, as well as giving “an unlawful instruction to Gen Wally Rhoode to investigate the burglary on his private farm”.

Earlier this year, the SA Revenue Service (Sars) said it had no record of the Phala Phala dollars being declared. Makhubu said this meant Ramaphosa transacted in large sums of foreign currency without declaring them to Sars, a violation of the service's excess currency policy and the Financial Intelligence Centre, which caps the amount of cash one can hold at R25,000.

Makhubu said Ramaphosa further violated the law by not depositing the cash within 30 days and declaring the money to Sars in terms of excess currency policy and Exchange Controls Regulations.

A letter from Reserve Bank governor Lesetja Kganyago to Ramaphosa’s legal team requesting details of the foreign currency used in the “sale” was further proof that the bank had no idea the president had foreign currency on his farm, said Makhubu.

He added that the party will approach the high court to review the report and set it aside.

“This report by the acting public protector contributes to the erosion of our democracy and a growing lack of trust in chapter 9 institutions tasked with holding this constitutional democracy together.”


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