By Professor Sipho Seepe
Cartoonists are having a field day caricaturing President Cyril Ramaphosa’s poor handling of the Phala Phala farm imbroglio. One such cartoon is that of Business Day’s Brandan Reynolds depicting Ramaphosa’s Phala Phala bathroom. Ramaphosa is shown trying to wash off the Phala Phala stain from his hands from the water gushing from two ornamentally designed faucets. The faucets carry the faces of the face of acting Public Protector, Advocate Kholeka Gcaleka, and the second that of Edward Kieswetter, the Commissioner of SARS. The message is clear; the two offices have abandoned all pretence of being independent or spouts of clean governance and accountability. Rather they have reduced themselves to being Ramaphosa’s very own cleansing agents.
The preliminary report of the acting Public Protector suggests that she had deliberately misdirected herself. It is a case of “see no evil, hear no evil, and report no evil”. The acting Public Protector could arguably be accused of having long nailed her Ramaphosa and ANC flag to the mast. Her reckless ambition to assume the position held by Advocate Busisiwe Mkhwebane got the better (or worse) of her. She knows quite well that she will need Ramaphosa and the ANC to become the next Public Protector. The Phala Phala investigation provided her with a golden opportunity to please. She had previously argued that she would not be rushed with the probe or be pressured by political pressure and indicated that such investigations often take two to three years to conclude.
While the acting Public Protector seeks to mislead, section 96(2) of the Constitution is unambiguous in expecting that the President may not: (a) undertake any other paid work; (b) act in any way that is inconsistent with his oath of office or expose himself to any situation involving the risk of a conflict between official responsibilities and private interests. In contrast to the Gcaleka’s preliminary report, the parliamentary-appointed panel to investigate the Phala Phala mess, unequivocally argued that based on the information before it, the President may have committed a serious violation of sections 96(2)(a) and of section 34(1) of the Prevention and Combating of Corrupt Activities Act. The panel, comprising a former Chief Justice, a senior judge, and a senior counsel, also argued that the President may have acted in a way that is inconsistent with his office by exposing himself to a situation involving a conflict between his official responsibilities and his private business.
In rejecting the acting Public Protector’s report, the EFF didn’t mince its words. The party declared that this was a “predictable outcome of the captured acting public protector’s report, which irrationally found that Ramaphosa committed no wrongdoing when he laundered money and evaded tax in relation to Phala Phala farm and when he sanctioned a rogue investigation to recover the illicit foreign currency kept at Phala Phala farm.”
Echoing the same sentiments, the DA argued that the Acting Public Protector “has misunderstood the nature of the conflict of interest raised, and has thus compiled a preliminary report which is not congruent with, or reflective of, the complaint which was lodged… What the content of this preliminary report highlights, however, is that there may now exist a clear conflict between the findings of the Public Protector and the Section 89 Independent Panel.” Who do you trust? A lawyer whose ambition is in the hands of politicians, or a panel comprised of highly experienced jurists.
SARS did no better. Previously the institution has strenuously refused to disclose taxpayer information arguing that the statutory guarantee of confidentiality is at the heart of the tax system. With public interest reaching stratospheric levels on the Phala Phala matter SARS released a statement in June 2022 stating that “the Commissioner does not involve himself in or deal with any taxpayer matters personally. Sars wants to reiterate that it continues to exercise its mandate for all tax infringements without fear, favour, and prejudice irrespective of the role and status of any taxpayer”.
Fast track March 2023; the very same institution wants the public to accept that the “$4 million (R74m) sale of game at President Cyril Ramaphosa's Phala Phala farm in 2020 has been declared”. Some media houses are doing their darndest in urging South Africans to shift their focus to Ramaphosa’s staffers who “allegedly stole it from a leather sofa into which the proceeds were reportedly sewn”.
South Africans are made to believe that the President who has been ducking and diving should be praised for agreeing to make his tax affairs public. We are told that his is an act of commitment to transparency. No explanation is given why the President had hidden behind “due process” instead of answering straightforward questions. Incidentally, this is the same President who had been quick to rush to the courts to ensure that funds related to his 2017 election campaign funding should be sealed. That such nonsense ends up seeing the light of day is too extraordinary to be believed.
The National Prosecuting Authority has also ensured that it is counted among the President’s keepers. The prosecuting authority has demonstrated unremarkable reluctance in preferring charges against Ramaphosa. The NPA stance contrasts sharply with the conclusion reached by Section 89 Independent Panel that investigated Phala Phala entanglement. The panel found that the President may have a case to answer. Interestingly so, this is the same NPA that has had no qualms to haul individuals to court over frivolous charges including those that should fall under mere misdemeanours. It would then ask for several postponements while it goes on a fishing expedition against the targeted individuals. Most of these end up being contemptuously dismissed by the courts. The NPA’s eagerness to pursue frivolous cases stands in glaring contrast to serious charges that could have been preferred against Ramaphosa.
No amount of manipulation of facts by SARS, NPA, and/or the Acting Public Protector will remove the stain on Ramaphosa. No cleaning agent or flood of spring water can remove it. The Office of the Public Protector is too important to democracy to be used for the dirty work of any politician, or to sanitise any wrongdoing. The same applies to the rest of Chapter 9 institutions. Their depoliticisation and independence are critical to clean, transparent, and effective governance. If they are to serve as valuable valves of democratic virtue, the appointments of those who head up these institutions must be done without political hand. For as long as the appointment of their heads is dependent on politicians, they would be unable to act without fear or favour.
There is no mistaking the fact, however that Ramaphosa is damaged goods. The international community that Ramaphosa has tried very hard to impress would have none of it. The Financial Times’ headline (10 Dec 2022) is telling. “Cyril Ramaphosa: the South African president clinging to power. A descent into (the) legal scandal is not the arc envisaged for a leader who won early glory battling apartheid”. In real democracies, leaders resign for far less egregious acts.
*Prof. Sipho Seepe is an independent political analyst
** The views expressed do not necessarily reflect the views of IOL or Independent Media.