THE African Transformation Movement (ATM) has added to the acting public protector’s headache with its application to challenge the Phala Phala report.
This was after the opposition party filed an application at the North Gauteng High Court, Pretoria, to review and set aside the findings of the report.
This after acting Public Protector Kholeka Gcaleka cleared President Cyril Ramaphosa of any wrongdoing in her final report released in June regarding the theft of US dollars in cash from his Phala Phala farm in Limpopo in February 2020.
The report said the allegation that Ramaphosa had violated the Executive Ethics Code and that there was a conflict of interest between his business dealings and his constitutional obligations “is not substantiated”.
However, the ATM said Gcaleka had failed to conduct her investigation in the manner required by sections 6 and 7 of the Public Protector Act. The party said Gcaleka ignored crucial evidence and failed to apply her mind to the impact of the evidence before her. The party said she failed to obtain the relevant evidence necessary for her investigation.
“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,” reads the application.
The application was signed by the ATM’s Vuyelethu Zungula, who cited Gcaleka as the first respondent. Ramaphosa and DA leader John Steenhuisen were cited as the second and third respondents.
Asked if the office was aware of the application, Gcaleka’s spokesperson, Ndili Msoki, did not respond.
The ATM is the second party to take legal action against Gcaleka’s report after the non-profit organisation Hola Bon Renaissance Foundation last week filed an application to have the report reviewed and set aside. The foundation said the report was flawed and sought to protect Ramaphosa against a Section 89 independent panel report, which found that the president may have violated numerous provisions of the Constitution.
In its application, the ATM said Gcaleka’s findings were substantively irrational because the evidence before her did not support the conclusion that Ramaphosa did not undertake other paid work. The party said Ramaphosa's own version demonstrated that he did so, adding there had been a violation of the Ethics Code and the Constitution.
The opposition party also said the findings were procedurally irrational because the process followed by Gcaleka was flawed.
“She did not obtain relevant and material evidence necessary to make a determination regarding a violation of the Ethics Code and the Constitution,” read the court papers.
The party added: “The acting Public Protector determined that the President did not conduct other paid work because he 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.
“First, the President does not need to be present on the farm to be engaged in the operations of the farm. Secondly, the President does not need to draw an immediate monthly salary in order for him to contravene the prohibition against other paid work.”
The ATM also submitted that Gcaleka was required to consider whether there was credibility to the whistle-blower Arthur Fraser’s allegation that Ramaphosa bribed one of the suspects, Froliana Joseph, in exchange for her silence.
“On the common facts, the acting Public Protector could not exclude the possibility that Ms Floriana was coerced into being silent. A case of kidnapping that was registered by her mother was inexplicably withdrawn on the basis that the whole thing was a misunderstanding. Yet, the nature of the misunderstanding is never disclosed.”
The party said regardless of the evidence presented to Gcaleka, she was determined to exonerate Ramaphosa.
“She accepted bare denials and turned a blind eye to crucial and necessary evidence. Why did the acting Public Protector ignore all of the evidence that demonstrates the President’s involvement in the business operations of Phala Phala?
“Why has the Acting Public Protector not set out the terms of the President’s loan agreement with Ntaba Nyoni in her report? Was this information obtained? If it was not, why not? Why does she not state that she was satisfied that the income received by the President does in fact relate to the loan agreement?
“Why did the acting Public Protector not seek the evidence of Ms Froliana, who was undoubtedly one of the most important witnesses in her investigation?”
The party said all these facts demonstrated that Gcaleka failed to comply with the standard set out by the Constitutional Court of an open and enquiring mind.