Deputy Public Protector Kholeka Gcaleka’s draft report into President Cyril Ramaphosa’s Phala Phala scandal carries the smell of a cover-up where officials are thrown under the bus to protect the incumbent, says the ATM.
This is according to a written response, which we have seen, the opposition party sent to Gcaleka in a bid to persuade her to review her decision to exonerate Ramaphosa from any wrong doing in the farmgate.
Gcaleka found that Ramaphosa had no case to answer for his involvement in the alleged stashing of illegal US dollars amounting to at least R8-million inside a sofa at his Phala Phala game farm in Limpopo.
The funds were allegedly stolen in February 2020 after a break-in.
Others put the figure at over R60-million and the allegations have been before the Hawks since June last year.
While the ATM, which was among the complainants that received the draft report from Gcaleka acknowledged the findings were not yet final, the party said it hoped to assist her “close the obvious gaps and correct the errors of law that we have identified”.
“Failure to do so will further fuel the suspicion that the Office of the Public Protector has subjected itself to the mission to defend president Ramaphosa at all costs, even at the expense of the reputation of this august Chapter Nine institution, established to protect the public against the abuse of power by the powerful,” said party president Vuyo Zungula.
Zungula said that, unlike Gcaleka, the independent parliamentary panel led by retired chief justice Sandile Ngcobo, retired judge Thokozile Masipa, and advocate Mahlape Sello SC had acted without fear, favour, and prejudice in finding that Ramaphosa had a case to answer.
The panel found in December last year that Ramaphosa may have committed a serious violation of the Constitution and anti-corruption laws, as well as two counts of serious misconduct. No obstacle, said Zungula, was standing in the way of Gcaleka studying the Ngcobo report to benefit from the insights of experts in the field of law, whose combined legal experience was probably no less than a century.
He said that the question of whether Ramaphosa declared his interests in parliament was “a red herring and a deliberate obfuscation of issues”.
He said Gcaleka’s “narrow and self-serving” interpretation of paid work would mean that “a doctor or advocate in private practice, deriving not a salary, but profit from his or her full-time practice, could also dabble as president or cabinet minister [but] nothing could be more absurd”.
“This is tantamount to denying that a person flew from Johannesburg to Cape Town purely because the person was not in the pilot seat.”
He said available evidence showed that Ramaphosa was actively involved in running the game farm business. He had identified the buffaloes that should be sold, advised potential buyers, and set the price.
Zungula suggested that Gcaleka treated Ramaphosa with kid gloves, citing that on June 17 last year, the president requested an extension to respond to suspended Public Protector Busisiwe Mkhwebane’s questions but a day later he was busy trading game and livestock at an auction at his Phala Phala farm.
He said Ramaphosa had misled the nation when in 2014, on assuming office as deputy president, he said all his business interests would be managed by a blind trust.
Zungula further said that Gcaleka, “in her blatant attempt to shield Ramaphosa from accountability… misconstrued the limited liability of members of a closed corporation for debts as a get out of jail card”.
“The management arrangements in terms of the daily operations of the close cooperation did not absolve the members of the close cooperation from the duty to report as imposed by the law. The law must trump management decisions inconsistent with the law,” he said.
Zungula said that according to the Ngcobo report, Ramaphosa had an obligation to report the alleged theft to the Hawks and not his personal bodyguard, Maj-Gen Wally Rhoode – the only person Gcaleka made an adverse finding against.
He said the law requiring foreign currency to be declared within 30 days did not specify “working days” as Ramaphosa claimed, and even on that count the money hidden in a sofa had not been disclosed when 30 working days passed on February 8, 2020, which was a day before the alleged theft.
“It is false and misleading to create the impression that the money was stolen on the last allowable day to disclose to the relevant authorities. It was only in the evening of the 31st day, on the 9th of February at around 22h00 the burglary happened”.
He said the banks were still open on February 9, “a day past the fake cut-off date”.
“So, in terms of the actual wording of the exchange control regulations, Ramaphosa unlawfully held on to foreign currency for 45 days and failed to declare until the money was stolen.”
Zungula said Gcaleka took “a whopping 195 working days after the complaint was laid” to release a draft report. This was when the law prescribed a 30-day deadline for complaints related to the executive’s conduct.
He said Gcaleka did not even bother to explain the “deliberately” prolonged probe.
He said that on the list of 31 questions Mkhwebane originally posed to Ramaphosa before he suspended her, some remained unanswered. These questions including how did the alleged buffalo buyer, Hazim Mustafa, know there were buffaloes for sale on the farm?
Zungula said that as in the apartheid days, it would seem that again the SAPS official must take the fall for his boss who issued the instructions as he had issued so many instructions before pertaining to the Phala Phala farm.
