Acting public protector Kholeka Gcaleka was never interested in finding President Cyril Ramaphosa on the wrong side of the law when she investigated theft at his Phala Phala game farm.
Instead, Gcaleka took up the investigation to arrive at a foregone conclusion that Ramaphosa was in the clear.
This she was determined to achieve even if it meant ignoring glaring evidence implicating the head of state.
These are some of the arguments contained in an application for review to set aside Gcaleka’s report clearing Ramaphosa of Phala Phala wrongdoing.
The African Transformation Movement (ATM) argues that Gcaleka is found wanting on three aspects, chief among which is her insistence that Ramaphosa does not draw financial benefit from the Phala Phala farm nor is he involved in the day-to-day running of the entity.
“The president’s very own version is damning. He made it clear that the money resulting from the sale of game could not be dealt with until he returned to the farm after ‘he and Mr Von Wielligh [the farm manager] would have an opportunity to process matters related to the transaction’,” Vuyo Zungula, president of the ATM, charges in his founding affidavit.
“Why is the president involved in processing a transaction? The acting PP [public protector] fails to deal with this evidence at all.
“The president himself recognizes that these acts are of a business nature. Of course, the president cannot perform business acts while he is president. To do so amounts to the violation of section 96[2] of the constitution.”
According to Zungula, Gcaleka is also in the mud for showing disinterest in sourcing the evidence of two key witnesses by merely accepting their refusal to give oral evidence.
The two witnesses are “Mr Ndlovu”, an apparent manager of the lodge and another staffer of the farm “Ms Froliana”, who gave information about the dollars stuffed in furniture to outsiders.
The so-called Mr Ndlovu allegedly refused to give oral evidence but opted for a written statement through his lawyers.
The ATM submits to court that this was so as to concoct a well-prepared story and narrative on which it would be difficult to poke holes.
As for the alleged Ms Froliana, Zungula says it was “puzzling” that she refused to give evidence by merely stating that she had spoken to many people including the media and Gcaleka simply accepted this reasoning.
The ATM believes Gcaleka let Froliana get off easily because her evidence would not assist in getting to a predetermined outcome of her investigation.
According to Zungula, it is further concerning that Gcaleka refused to investigate Ramaphosa on potential contravention of tax law and exchange control laws.
The party argues that the matters fell within the purview of the PP, as they relate to executive ethics code the president was alleged to have violated.
“The justification by the acting PP for her failure to investigate the president’s compliance with tax obligations and exchange control obligations are the same – that both SARS [SA Revenue Service] and SARB [SA Reserve Bank] are better placed to deal with it.
“This justification is an unlawful reason to refuse the obligation to conduct an investigation within the jurisdiction of the office of the public protector.
“The approach of the acting PP was patently irrational and unlawful,” according to Zungula.
It was, however, not surprising that Gcaleka did things the way she did, Zungula hammered home, for hers was a lacking open and enquiring mind from the onset.
“Her willingness to accept bare denials, and her refusal to obtain relevant and material evidence – which she herself recognizes as relevant and material, illustrates that the outcome of her investigation was a foregone conclusion.
“The acting PP would not allow relevant evidence to interfere with her findings.”
It therefore, Zungula argues, stands to reason that the high court “concludes that the acting PP conducted her investigation and reached her findings in an unlawful manner” and proceed to order that Gcaleka’s Phala Phala report is declared inconsistent with the constitution and thus invalid and set aside.
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