By Lehlohonolo Lehana.
Acting public protector advocate Kholeka Gcaleka has cleared President Cyril Ramaphosa in the investigation into a recording where he can be heard saying he was aware of how public funds were used for certain political campaigns within the ANC.
Earlier this year, suspended Public Protector, Busisiwe Mkhwebane launched an investigation into Ramaphosa for allegedly breaching the Executive Code of Ethics.
The investigation was launched after ANC MP Mervyn Dirks wrote to the Standing Committee on Public Accounts (Scopa) requesting the committee to summon Ramaphosa to account for remarks he made in a leaked audio recording.
In the recording, Ramaphosa is heard commenting on allegations of public funds being used for ANC campaigns, and that he was “willing to fall on the sword” to protect the governing party.
Releasing a report on Friday, Acting Public Protector, Kholeka Gcaleka concluded that allegation against Ramaphosa was “unsubstantiated”.
“Evidence obtained indicates that prior to the president making these utterances, it was widely reported even in the State Capture Commission which was public on the misuse of public funds by the ruling party for party political gain,” she said.
Gcaleka said there was no evidence the Public Protector’s office can find that Ramaphosa “contravened any provisions of the Code”.
“In the circumstances, the Public Protector of South Africa is satisfied that the utterances of the president in the audio was not in violation with the Code. Accordingly, the investigation is closed,” she added.
In June, Scopa decided not to investigate Ramaphosa regarding the audio after expressing interest.
Regarding the accusations by Dirks against the Public Protector, Gcaleka said: “He is alleging that the Public Protector is shielding the president from scrutiny. This allegation is unfounded”.
Dirks was suspended by the ANC in January, after approaching Scopa, with the governing party initiating disciplinary proceedings against him.
Gcaleka has also made adverse findings against National Assembly Speaker, Nosiviwe Mapisa-Nqakula, regarding her official 2020 trip to Zimbabwe.
The Public Protector’s office had investigated allegations of improper conduct and maladministration after receiving five complaints into the flight.
Mapisa-Nqakula, who is the former Defence and Military Veterans Minister, had allowed senior ANC officials to travel on a South African Air Force (SAAF) flight to Harare in September 2020.
The delegation had included Ace Magashule, Lindiwe Zulu, Nomvula Mokonyane, Enoch Godongwana, Tony Yengeni and Dakota Legoete.
Releasing a report into the matter on Friday, Gcaleka found that the flight was “in violation of applicable legal prescripts”.
“Ms Mapisa-Nqakula neither had the authority or the permission to ferry the ANC delegation in an SANDF [South African National Defence Force] aircraft that was approved to transport herself and her staff to and from Harare, Zimbabwe, for an official meeting with her counterpart as approved by President Cyril Ramaphosa,” she said.
The Acting Public Protector also said Mapisa-Nqakula’s conduct was in breached of Section 96(2)(c) of the Consitution, which states that “members of the Cabinet and Deputy Ministers may not use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”.
“[This is] in a sense that state resources were inappropriately used to improperly benefit a political party.
“Accordingly, Ms Mapisa-Nqakula’s conduct constituted improper conduct as envisaged in the Constitution and maladministration as contemplated in the Public Protector Act,” Gcaleka added.
Gcaleka further found that the Department of Defence and Military Veterans “suffered financial prejudice” as a result of Mapisa-Nqakula’s conduct.
“The state incurred travel financial costs as a result of the trip to and from Harare. The department has since calculated the amount due by the ANC [which is] R105 545.46. On the 30th of September 2020, the ANC reimbursed the department the said amount for the cost incurred for their delegation, “the Acting Public Protector continued.
She added that The Speaker’s conduct “constituted an improper advantage and unlawful enrichment” to the ANC “as envisaged in the Public Protector Act”.
To appropriately remedy this improper conduct, maladministration, unlawful enrichment or receipt of improper advantage, the president must, within 30 days of receipt of this report, give an instruction for the issuance of a directive for compliance with the Ministerial Handbook, in terms of Section 85(2) of the Constitution, to handle the practice of giving lifts to ensure that Cabinet members and Deputy Ministers act within confides of the Constitution at all times when dealing with state resources.”
No remedial action, however, will be taken to Mapisa-Nqakula since Ramamphosa had already directed that her salary be docked for three months.
“Furthermore, no remedial action is being taken in respect to the recovery of the costs of the trip from the ANC,” Gcaleka concluded.
In another finding, the Public Protector found that the Defence Department’s R35 million procurement of drugs from Cuba to fight Covid-19 was irregular.
This follows complaint by the DA lodged on 19 February 2021 with the office of the Public Protector to investigate the brazen irregularities around the South African National Defence Force’s procurement of (Hebron) Interferon Alfa 2B from Cuba.
The report includes the following:
- Allegation that the DOD did not follow a proper procurement process when procuring the drug is substantiated;
- The DOD contravened the Operation Thusano bilateral agreements between South Africa and Cuba, which they claimed to have relied on to procure the drug;
- The DOD contravened sections of the Constitution, Treasury Regulations and the DOD Policy;
- The drug was not registered to treat Covid 19 in South Africa and the DOD senior officials proceeded to bring it into the country on 27 April 2020, prior to them applying for its registration to the SAHPRA. The SAHPRA directed the DOD on 3 November 2021, to return the drug to Cuba; and
- The DOD spent approximately R 33 million under false pretenses to procure the drug without following the normal procurement processes, which amount has not been recovered to date.
Mapisa-Nqakula, then the Minister of Defence at the time and currently the Speaker of parliament, has shared with her executive colleagues on the Coronavirus Command Council, that there were no support for this importation, but still she seemingly did nothing to prevent these irregular, illegal and wasteful actions and expenditure.
Gcaleka has also cleared Public Enterprises Minister Pravin Gordhan following a complaint that he appointed Nthabiseng Borotho as chief of staff despite prima facie evidence that she did not possess the minimum requirements for the post.
“On the basis of evidence uncovered during the investigation and the relevant regulatory framework, the Public Protector’s office found that the minister did not act in violation of the Executive Code of Ethics when he appointed Ms Borotho as chief of staff, said Gcaleka.”
“The minister appointed Borotho to the position in question in line with regulations of the public service regulations whereby he sought approval in as envisaged from former minister of the Department of Public Service and Administration, Senzo Mchunu by way of a deviation from Borotho’s lack of formal qualification for the post.”
Borotho’s appointment as chief of staff in 2020 was met by public outrage at the time, given that she did not have the academic qualifications required for the position.