Then acting Public Protector Kholeka Gqaleka receives a memorandum of demands from opposition parties to release her Phala Phala report in September 2022. Picture: Oupa Mokoena/Independent Newspapers
PRESIDENT Cyril Ramaphosa’s lawyers have asked that the two North Gauteng High Court applications to review and set aside Public Protector Kholeka Gcaleka's Phala Phala report be consolidated in order to save money.
Gcaleka’s report exonerated Ramaphosa from any wrongdoing in the theft of US$580 000 (about R8.8 million at the time the money was stolen in February 2020) from his Phala Phala farm in Limpopo.
She also could not find evidence to support the allegation that Ramaphosa received remuneration and/or undertook paid work at Phala Phala while president and whether he abused his powers and state resources by causing presidential protection service members to be deployed to investigate the theft of the undeclared foreign currency.
In addition, while Gcaleka accepted that the Prevention and Combating of Corrupt Activities Act (Precca) placed the duty on certain persons to report certain offences and that failure to report them was an offence, she said she was not empowered to pronounce on the merits and demerits of the crime, and to make findings as the offence did not fall within the Public Protector Act and the matter is investigated by the Hawks.
The Hola Bona Renaissance (HBR) Foundation and the African Transformation Movement have launched two separate high court applications to overturn Gcaleka's report, which cleared Ramaphosa, who has come under fire for spending over R32 million on legal fees since he became president in February 2018.
Ramaphosa recently revealed in a written parliamentary reply to EFF MP Mzwanele Manyi’s questions that he had spent about R9.1m on legal matters in which he was the applicant and nearly R23.1m on cases he had been cited in as the first respondent.
The president’s lawyers, Harris Nupen Molebatsi (HNM) Inc, have now asked the HBR Foundation’s legal representatives, Zehir Omar Attorneys, to take the necessary steps to consolidate the non-profit organisation’s application with the ATM’s before pleadings close in the matter to ensure that the purpose of consolidation the two applications was fully achieved.
A letter from HNM Inc, dated February 1, reads: ”We had originally consented to the proposal to consolidate the matters on the understanding that consolidation would take place before close of pleadings so that the matters could be dealt with as one at this early stage, with the effect that the respondents (Gcaleka and Ramaphosa) would only be required to serve and file one affidavit in answer to both applications.“
According to the president’s legal team, consolidating the matters after close of pleadings would mean that the respondents would be forced to deliver two separate affidavits in answer to what were essentially the same issues.
”This will undoubtedly frustrate part of the purpose of pursing consolidation and will result in unnecessary costs,” said HNM Inc.
The law firm indicated that when making the order of consolidation, the court would have the power to also make an order regarding the further conduct of the litigation, which may include an order as to the time frames for the filing of pleadings.
”As the time-frames may deviate from the time-frames prescribed in uniform rules of court, it is best to wait for the court to make its order before filing any further pleadings and taking any further steps in the litigation. This will result in time and cost savings for all of the parties and will ensure that the purpose of consolidation is fully realised.”
Ramaphosa’s lawyers asked the HBR Foundation’s attorneys to advise all parties involved in the matter if their client had abandoned the intention to consolidate the applications so that they could discuss and agree on a way forward.
ATM leader Vuyo Zungula told the Sunday Independent that the consolidation of the party’s application would depend on Gauteng Judge President Dunstan Mlambo’s directives and that it was possible to have a consolidated hearing of both.
He said Gcaleka’s office delivered to the ATM an incomplete record in terms of the uniform rules of court.
”This was challenged by the ATM, consequently, during October 2023 a complete record of the Phala Phala investigation by the office of the acting Public Protector as she then was, was sent to the ATM,” Zungula said.
He said both Ramaphosa and Gcaleka had not yet filed their answering affidavits and the ATM had now instructed its attorneys to refer the matter to case management.
”The hearing date will depend on the directives of the case management but ATM will seek an expedited hearing if possible before June 2024,” Zungula said.
Meanwhile, the ATM has instructed its attorneys to join the EFF’s Constitutional Court application to overturn the National Assembly's decision to vote against the report of the Section 89 independent panel chaired by retired former chief justice Sandile Ngcobo as it seeks similar relief.
Justice Ngcobo’s November 2022 report found that the information at its disposal disclosed prima facie that Ramaphosa broke the law and may have committed serious violations of sections of the Constitution and Precca by acting in a way that was inconsistent with his office, among other findings.
loyiso.sidimba@inl.co.za