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Acting Public Protector hauled to court over Phala Phala report

Acting Public Protector Kholeka Gcaleka’s report on Phala Phala has been challenged at the Gauteng High Court, Pretoria. Picture: Screengrab

Acting Public Protector Kholeka Gcaleka’s report on Phala Phala has been challenged at the Gauteng High Court, Pretoria. Picture: Screengrab

Published Jul 30, 2023


Acting Public Protector Kholeka Gcaleka’s report on Phala Phala has been challenged at the Gauteng High Court, Pretoria.

Non-profit organisation Hola Bon Renaissance Foundation wants the report to be reviewed and set aside.

The foundation said the report should be reviewed and set aside because Section 33(1) of the Constitution had been contravened.

This after Gcaleka cleared President Cyril Ramaphosa of any wrongdoing in her final report released last month regarding the theft of US dollars in cash from his Phala Phala game farm in Limpopo in February 2020.

The report said the allegation that Ramaphosa had violated the executive ethics code and that there was a conflict of interest between his business dealings and his constitutional obligations “is not substantiated”.

However, according to HBR, the report was flawed and sought to protect Ramaphosa against an independent panel of Section 89 report, which found that Ramaphosa violated numerous provisions of the Constitution.

As a result, the foundation wrote to Gcaleka and demanded that she withdrew the report with immediate effect and hold a press conference to apologise to the citizens.

Gcaleka was given 72 hours to withdraw the report.

Following her failure to comply, the HBR has now approached the Gauteng High Court, Pretoria, to review and set aside the report.

In the court papers filed this week, Gcaleka is cited as the first respondent. Ramaphosa and the government are cited as the second and third respondents.

The foundation argued that Gcaleka did not have the jurisdiction to investigate and make findings against Ramaphosa.

“The facts and law hereunder reveal that the first respondent misdirected herself and acted arbitrarily in assuming jurisdiction in investigating and making the findings on receipt of complaints she received from, inter alia, Mr (John) Steenhuisen, the leader of the Democratic Alliance (DA), against the second respondent – the president of the Republic of South Africa,” read the affidavit written by chairperson Mothopeng Msieleng.

On Friday, Gcaleka’s spokesperson, Ndili Msoki, said the office has not as yet received any review application in relation to the Phala Phala report.

Msieleng said the Phala Phala matter could not be construed as state affairs or public administration.

“That being said, the first respondent did not have the jurisdiction to investigate and make recommendations about the the Phala Phala saga. That matter does not fall within the definition of state affairs or public administration,” said Msieleng.

He added that it was for this reason that Speaker Nosiviwe Mapisa-Nqakula had appointed Justice Sandile Ngcobo, retired judge of the Gauteng High Court, Johannesburg, Judge Thokozile Masipa and advocate Mahlape Sello as members of the independent panel to conduct a preliminary inquiry on the motion last year.

“If this honourable court finds that the first respondent had the jurisdiction to investigate and make findings upon complaint she received from, inter alia, Mr Steenhuisen of the DA, then the applicant submits that the first respondent’s findings hereunder were made arbitrarily and irrationally and must therefore be set aside as prayed for,” read the affidavit.

Msieleng added that the admissions made by Ramaphosa were recorded in paragraph 220 on page 69 of the Section 89 panel report. He said Gcaleka had sufficient time and must be taken to scrutinise the Section 89 panel report that was released before her report six months later.

The independent report found that Ramaphosa had a “prima facie” case to answer. The panel also found that Ramaphosa contravened Section 96(2)(b) and Section 83(d) of the Constitution.

Msieleng said Gcaleka’s failure to have regard to the Section 89 panel report before making her findings amounted to a “misdirection”. He added that her failure to deal with the phrase “paid work” as was dealt with by the Section 89 panel appearing on pages 62-65 of the report also amounted to “misdirection”.

He said Gcaleka misdirected herself in exonerating Ramaphosa from having contravened the provisions of Section 96(2)(a) of the Constitution.

“I respectfully say that there is no obstacle in giving effect to the recommendation by the Section 89 panel to charge the second respondent criminally for having contravened Section 34(1) read with Section 34(2) of Precca Act 12 of 2004.

“The first respondent’s report is of high significance. Her report stands in stark conflict with the findings of the Section 89 report. But for the first respondent’s report, the president would be investigated criminally. The first respondent’s report is now affording the president a shield against criminal prosecution.”

The foundation said the public had a right to have their president account for the wrongdoings that the Section 89 panel found he had prima facie committed. It said the matter was urgent as Ramaphosa continue to act.

“The applicant will not be able to get suitable redress in the normal course. The national elections are scheduled to happen in 2024. If these proceedings are instituted in the normal course, the matter is likely not to be finalised by the time the 2024 elections happen.”