Acting Public Protector Kholeka Gqaleka receiving a memorandum of demands to release the Phala Phala report in September last year. Picture: Oupa Mokoena/African News Agency (ANA)
ACTING Public Protector Kholeka Gcaleka is still considering her next course of action in the fight to overturn her Phala Phala report into the theft of undeclared US dollars from President Cyril Ramaphosa’s Limpopo farm.
The Hola Bona Renaissance (HBR) Foundation, a non-profit organisation, and the African Transformation Movement (ATM) have asked the North Gauteng High Court to review and set aside Gcaleka’s report on her the investigation into allegations of the violation of the executive ethics code by Ramaphosa.
In the HBR Foundation’s court papers, it argues that Gcaleka’s report should be overturned because, among others, the theft of US dollars from Ramaphosa’s private farm did not constitute state affairs or public administration.
”The first respondent’s (Gcaleka’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,” argues the HBR Foundation.
The Section 89 panel chaired by former chief justice Sandile Ngcobo found that Ramaphosa had a prima facie case to answer and that he contravened sections of the Constitution.
According to the foundation, Gcaleka’s failure to have regard to the Section 89 panel report before making her findings amounted to a misdirection and that her failure to deal with the phrase “paid work” as was dealt with by the Section 89 panel appearing was another misdirection.
This week, Gcaleka’s office told the Sunday Independent that it had received the review application.
”The institution is considering its legal position and will thereafter determine its course of action,” Gcaleka’s spokesperson, Ndili Msoki, said.
However, the HBR Foundation’s Preddy Mothopeng Msieleng said the matter was now enrolled on the high court’s unopposed roll since the other respondents cited had not submitted their intentions to oppose the review application.
”The court rules are that if the respondent has not filed its intention to oppose during the prescribed period as per the notice of motion, the matter will be on the unopposed roll. The (office of the acting) Public Protector has missed its deadline,” he said.
”The first respondent (Gcaleka) is called upon to show cause why the aforesaid decision or proceedings should not be reviewed and corrected or set aside, and … to dispatch, within 15 days after receipt of the notice of motion, to the registrar (of the high court), the record of such proceedings sought to be corrected or set aside together with such reasons as he/she is by law required to give or make, and to notify the applicant (HBR Foundation) that he/she has done so,” read the court papers.
Last month, the HBR Foundation wrote to Gcaleka and gave her 72 hours to withdraw her report but she failed to so and it approached the high court.
“The facts and law hereunder reveal that the first respondent (Gcaleka) misdirected herself and acted arbitrarily in assuming jurisdiction in investigating and making the findings on receipt of complaints she received from inter alia (John) Steenhuisen, the leader of the Democratic Alliance, against the second respondent – the President of the Republic of South Africa,” read Msieleng’s founding affidavit.
The ATM has also filed its review of Gcaleka’s Phala Phala report, stating that she failed to conduct her investigation in the manner required by the Public Protector Act.
The party accused Gcaleka of ignoring crucial evidence and failing to 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 told the high court.
It continued: “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.
According to the ATM, 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.
ATM leader Vuyolwethu Zungula said the party had also not received Gcaleka’s notice of intention to oppose its application.
loyiso.sidimba@inl.co.za