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Public Protector told to withdraw Phala Phala report or face court

Acting Public Protector, Advocate Kholeka Gcaleka.

Acting Public Protector, Advocate Kholeka Gcaleka.

Published Jul 9, 2023


Acting Public Protector Kholeka Gcaleka has been told to withdraw the Phala Phala report with immediate effect or face the court.

Hola Bon Renaissance (HBR) Foundation has written to Gcaleka and demanded that she withdraw the report with immediate effect and hold a press conference to apologise to the citizens.

The foundation has given Gcaleka 72 hours to withdraw the report.

It said a failure to do so would see them instituting legal proceedings against Gcaleka.

This after Gcaleka cleared President Cyril Ramaphosa of any wrongdoing in her final report released last week 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, 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.

HBR chairperson Mthopeng Msieleng said when Gcaleka released her “illegal report”, she did not consider that the matter was sub judice and had no authority and mandate to review the independent Section 89 panel report.

Msieleng said Gcaleka clearly violated the Public Protector Constitutional mandate and, furthermore, has degraded the office. Msieleng added that this caused harm to the integrity of the institution and resulted in South Africans losing confidence and respect, and brought the office into disrepute.

Msieleng said HBR act on behalf of the affected citizens, institutions and civil organisations in terms of Sections 3, 10, 11, 18, 20, 33, and 34 of the Constitution of the country.

“It is our clients’ respective view that the Public Protector cannot overwrite and/or review and/or be superior to Parliament with its processes and that of the independent panel of section 89 with its report and furthermore has no authority to act as an ombudsman and/or do an oversight on Independent panel section 89 report,” read the letter.

“In light of the above, our client has instructed us to demand the Public Protector to immediately instruct its office and management, Staff and any other body it is responsible for to set aside and/or put a moratorium and/or to withdraw its report on the President Phala- Phala with immediate effect and hold a press conference to apologise to all South Africans, legal sector and the Judiciary Sector as a whole.”

“Furthermore, we would like to bring to your attention that the Society for the Protection of our Constitution has lodged a court application against the President of the Republic and the Director of Public Prosecution and National Prosecuting Authority to prosecute President Ramaphosa based on the independent Section 89 panel report.

‘’With the above information brought to your attention, we hereby caution you that the outcome of the court case has a serious implication for the Public Protector decision and that the Public Protector report may be seen as an obstruction of justice and an accomplice in defeating the ends of justice,” said Msieleng.

He added: “We, therefore, demand the above matter be set aside, be put on the moratorium, and withdrawal of the report within 72 hours from the date of transmission hereof, failing which we shall institute legal proceedings against Public Protector including recovering the costs that we would have occasioned as a result of Public Protector’s failure to comply with the terms of its obligation and that of the letter of demand.”

Gcaleka’s spokesperson Ndili Msoki confirmed that the office received the letter. However, he said the Public Protector Act does not permit the Public Protector to unilaterally review or revoke her decisions. ‘’Accordingly, Advocate Gcaleka has exhausted her powers, as provided for in section 182 (1) of the Constitution, as well the Executive Members Ethics Act, and is thus functus officio,’’ he said.

The opposition parties said they were also planning to challenge the report and have it set aside.

This was after the African Transformation Movement (ATM), ActionSA and the DA said they were taking legal action to challenge the findings of Gcaleka’s report.

Asked how far they are with the process, the party’s spokesperson Zama Ntshona said they are still waiting for their legal representatives and will make it public as soon as they file the papers.

On the other hand, in a report statement after the ANC’s National Working Committee (NWC) Meeting on Monday, the party’s secretary-general Fikile Mbalula said the ANC reiterates its alarm at the attacks on the integrity of the office of the Public Protector merely because some disagreed with the report. He said the party view such attacks as undermining “our” democracy and constitutionalism.

“Political parties have the right to review the Public Protector report. The ANC believes that no one must attack the Public Protector and no women must be violated and grossly attacked,” said Mbalula