By Lehlohonolo Lehana.
The African Transformation Movement (ATM) approached the courts to review and set aside acting Public Protector advocate Kholeka Gcaleka’s contentious Phala Phala report.
In an application filed to the Pretoria High Court, ATM president Vuyo Zungula asks for an order declaring Gcaleka’s findings inconsistent with the constitution and invalid, and setting these aside.
In her report released on 30 June, Gcaleka exonerated President Cyril Ramaphosa from any wrongdoing following a theft of foreign currency at his farm in Bela Bela in February 2020.
Gcaleka said there were no conflict of interest in Ramaphosa’s involvement in the business operations of the Phala-Phala farm, saying he was not earning a salary from the holding company Ntaba Nyoni CC.
She also cited the president’s physical absence from the farm as a reason for her finding.
The ATM, which initially filed a complaint at the same office, says Gcaleka’s conclusion that the president did not undertake “any other paid work” is flawed, irrational and unlawful.
Zungula said Gcaleka had failed to interview crucial witnesses before making her final decision.
This was farm manager Simphiwe Ndlovu, who stashed the cash in the furniture. Domestic worker Froliana Joseph, who allegedly tipped off the criminals about the cash and led them to the loot.
Zungula said Gcaleka should have insisted on interviewing Ndlovu, although he was resisting.
He added that Joseph’s evidence would have been more crucial.
Zungula also argued in his papers that it was puzzling that Gcaleka failed to get Ramaphosa’s tax records from the South African Revenue Service.
He said she was intent on clearing Ramaphosa at all costs.
“The cumulative errors made by the acting public protector that the outcome of her investigation was a foregone conclusion. Regardless of the evidence presented to her, she was determined to exonerate the president. She did not conduct the investigation with an open and enquiring mind. She accepted bare denials and turned a blind eye to crucial and necessary evidence,” said Zungula in his application.
Gcaleka focused on whether the president had abused state resources, whether he undertook other paid work and whether he failed to use the proper channels in reporting the crime.
She also investigated whether Presidential Protection Services officers acted improperly by conducting their own investigation.
As for the allegation that he had breached section 34 of the Prevention and Combating of Corrupt Activities Act through failure to report the theft of foreign currency, she found that she lacked the competency to deal with it since that resided with the Directorate for Priority Crimes Investigation (Hawks).