Bickering between lawyers representing the Hola Bona Renaissance (HBR) Foundation and Public Protector Kholeka Gcaleka, over the review of her report into theft of US dollars at President Cyril Ramaphosa’s farm, looks set to cause further delays.
Ramaphosa’s legal team, Harris Nupen Molebatsi Inc, informed the foundation’s lawyers, Zehir Omar Attorneys, that the president consented in October to the consolidation of the matter with the African Transformation Movement’s (ATM’s) application to also review and set aside Gcaleka’s report.
”Pursuant thereto, you removed the matter from the urgent roll and it is our understanding that you did so on the basis that the above matter would be consolidated with the ATM matter,” reads Ramaphosa’s lawyers’ letter, dated November 23, 2023, to the HBR Foundation’s legal representatives.
Ramaphosa’s legal team said the president had not filed an answering affidavit because there would be no point in doing so if the HBR Foundation’s claim was to be consolidated with that of the ATM.
”Therefore, once the matters have been consolidated we shall file an answering affidavit in response to your client’s founding affidavit, and that of the ATM. To date, no answering affidavits have been filed in the ATM matter because the ATM indicated that it sought to supplement its founding affidavit after receipt of the rule 53 record,” the lawyers said.
Ramaphosa’s lawyers also warned that HBR’s intention to set the matter down on the unopposed roll would be opposed by the public protector and the president, and that it would be irregular and illegal to set it down on the unopposed roll as the foundation suggested.
The HBR had threatened to set the matter down on the unopposed roll for hearing on Tuesday this week if Ramaphosa had by then, not filed his answering affidavit.
In its review application, ATM states that Gcaleka failed to conduct her investigation in the manner required by the Public Protector Act, and ignored crucial evidence. They say she also did not apply her mind to the impact of the evidence before her.
“And she reached various conclusions in an irrational manner. The aggregated result of the acting Public Protector's cumulative errors demonstrates that the outcome of her investigation was a foregone conclusion.
“She did not conduct the investigation with an open and enquiring mind,” the ATM explained in its papers filed at the North Gauteng High Court.
“The acting Public Protector determined that (Phala Phala) did not conduct other paid work because he (Ramaphosa) is not present on the farm very often and he does not draw a salary from the farm. Neither reason serves as a rational basis to conclude that the president does not conduct other paid work,” the party added.
Ramaphosa does not need to be present on the farm to be engaged in its operations and that he also does not need to draw an immediate monthly salary in order for him to contravene the prohibition against other paid work, the ATM says.
The foundation has described Gcaleka’s report as standing in stark conflict with the findings of the section 89 report.
”But for the first respondent’s (Gcaleka’s) report, the president would be investigated criminally. The first respondent’s report is now affording the president a shield against criminal prosecution,” they argued.
The section 89 panel, chaired by retired Chief Justice Sandile Ngcobo, found that Ramaphosa had a prima facie case to answer and that he had contravened sections of the Constitution and the Prevention and Combating of Corrupt Activities Act.
In December last year, the ANC majority in the National Assembly voted to reject Justice Ngcobo’s report, and for Parliament not to proceed with the process that could have led to Ramaphosa being impeached.
Sunday Independent