Acting Public Protector Koleka Gcaleka. File picture
THE ACTING Public Protector used a very narrow interpretation of the law and the Executive Ethics Code especially in terms of the president’s admission of his involvement in the farm business, which makes her report into the Phala Phala saga ripe for legal challenge, according to experts.
Legal experts have agreed that acting Public Protector Koleka Gcaleka’s report did not take all the facts into account concerning the Phala Phala farm robbery involving millions of rand in foreign currency stuffed in couches on President Cyril Ramaphosa’s Limpopo farm.
Gcaleka’s report, released last week, cleared the president of any wrongdoing related to his position in office and abusing his power in utilising state resources to investigate the theft at his private farm, among others.
This while the National Prosecuting Authority (NPA)’s position on whether or not it will prosecute is yet to be determined, as the authority has given itself about two months to make a decision.
Donda Attorneys managing director Melusi Xulu cited the president admitting in public that, “I’m a farmer, I am in the cattle business and the game business, I buy and I sell animals... This that is being reported was a clear business transaction of selling animals.”
Xulu explained: “Section 96(2)(a) and 96(2)(b) of the Constitution states the following: 96(2) Members of the Cabinet and Deputy Ministers may not: (a) Undertake paid work (b) Act in a way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests. The close corporation involved in the sales of these cattle is a company where the President is a sole director; this may be perceived to look as if he is involved, (in) paid work that directly benefits the President.
“In the event that the matter is taken on review in High Court, it shall be looked if the President violated his constitutional duties.”
Advocate Rod Solomons said that the Public Protector had applied a narrow legalistic interpretation of the law and the Executive Ethics Code and what it means to be busy with private work.
“Her interpretation boggles the mind because he (Ramaphosa) clearly said it. It is not hearsay and she confirmed he ran (the farm) with much more time than what he initially let on; he in effect ran that business. Whether he got a salary from it is neither here nor there, he is a 100% beneficial shareholder of that business.
“If you own, you benefit 100% from the proceeds of that business.
“He benefits from the fact he has these animals and he gets high-net-worth, high-profile individuals coming to his farm to potentially buy animals.
“We don’t know what flows from that. It’s not about whether he is an employee, he is an owner and he employs people to run his business.
“It is unfortunate she pronounced on that while the other entities’ reports are not out yet. I think there are sufficient grounds for that report to be taken on review. If the political parties did not take it on review they would have failed in their obligation to the public,” he said.
Lawyer Michael Bagraim said Gcaleka took a very conservative look at the issue.
“Most of the facts were ignored. The president himself admitted at least a dozen issues in his first explanation. Furthermore, the Public Protector ignored other evidence. One must understand the Public Protector is not a court of law and she is not bound by the same rules of evidence. The report must be taken on review.”