Gcaleka’s probe was tightly focused, but thorough

When former chief justice Sandile Ngcobo and his panel found that President Cyril Ramaphosa had an impeachment case to answer over the Phala Phala saga, his report was clear about its own limitations.

The panel acknowledged that much of the information before it was hearsay, its source unclear, that there were gaps in the story and many unanswered questions. The panel also had limited time to complete its task. Ngcobo’s report said: “We neither have the tools nor the power to excavate beneath the information that we have been provided with to uncover the answers to the unanswered questions.”

With extensive powers of subpoena, a team of investigators and nearly 10 months to do the job, acting public protector Kholeka Gcaleka faced fewer constraints. Her investigation was a thorough, albeit narrow, one. This is clear from the section 7(9) notice — the preliminary report — sent to affected parties last week, setting out what she is likely to find.

The investigation was confined to determining whether there were breaches of the executive ethics code and improper conduct by the president or police officers. Potential breaches of tax laws, exchange control laws and “allegations of criminality” were left to the South African Revenue Service (Sars), the Reserve Bank, the Hawks and the Independent Police Investigative Directorate (Ipid).

Sars has since declared, with Ramaphosa’s permission, that he and Ntaba Nyoni Estate (the registered name of Phala Phala) are “compliant with their tax obligations to date”.

The Bank and Ipid this week would not be drawn on the progress of their investigations.

In terms of the issues within Gcaleka’s mandate, her investigation tracked down and interviewed almost all the relevant roleplayers. It obtained documents that the Ngcobo panel didn’t have — including the record of the president’s declaration of his financial interests, revealing that he had declared his interest in Phala Phala and had received no earnings from the business.

The preliminary report cleared Ramaphosa of wrongdoing under the code. After looking at the law around the meaning of “paid work”, it found that the code’s prohibition on cabinet members undertaking paid work was “narrow and focused”. It meant that a member of cabinet “may not do other work, for which he or she gets paid or receives remuneration”.

The president did have a financial interest in the Phala Phala business, but this was different to paid work. “To have a financial interest in a business is distinguishable from working, being employed and receiving remuneration for contributing to the operations of the business.”

Ramaphosa’s financial interest was declared. He also declared that he had received no remuneration other than as a member of the executive. The public protector found that maintaining a financial interest in Phala Phala “as an investor and a trustee” did not give rise to a conflict of interest.

The preliminary report cleared the president on the complaint that he failed to report the burglary and abused his power by using state resources to investigate a crime against his private business. Though it found that the investigation led by the head of the presidential protection unit (PPU), Maj-Gen Wally Rhoode, was improper, no evidence was found to link the president to this improper conduct.

The president reported the break-in to Rhoode. But there was no “specific instruction as to how [Rhoode] should deal with this matter”, said the report. “There is no evidence upon which to conclude that Gen Rhoode was influenced, coerced or dictated to by the president,” it said.

The initial deployment of the PPU at Phala Phala was not improper, said the report. The president is, according to the Presidential Handbook, entitled to “static protection” at his private residences.

What amounted to “conduct failure” on Rhoode’s part was not the preliminary investigation but the follow-up: “The report compiled by Sgt Rekhoto … indicates that the investigation focused on the crime of housebreaking … rather than the threat to the president’s safety.”

However, the public protector had no jurisdiction to question people outside the country. These included Sudanese businessman Mustafa Mohamed Ibrahim Hazim, who bought the buffalo with the cash that was later stolen. She could not pursue the Namibian connection: the allegation made by former spy chief Arthur Fraser that Ramaphosa had sought the assistance of Namibian President Hage Geingob and the Namibian police in tracking down suspects.

The Namibian connection is important because the information provided by Fraser on this a confidential Namibian crime intelligence report offers the only direct link between Ramaphosa and what the public protector found was the improper part of the investigation. The intelligence report says South African authorities requested the matter be handled discreetly and that “discussions are allegedly going on between the two presidents”.

However, Fraser did not disclose where he got the classified report, rendering its value as evidence questionable. The president objected to the hearsay nature of Fraser’s information to both Ngcobo and the public protector, but both used it nonetheless.

Gcaleka’s team did interview Interpol liaison officer Jorine Edwards, who the crime intelligence report named as the police officer who was asked to check if there was a warrant of arrest for the alleged mastermind of the burglary, Imanuwela David. Fraser suggested to the public protector that Edwards would have had a “fiduciary duty” to report this interaction to her police superiors and Gcaleka should ask whether the police had received any approach from the Namibian

authorities for assistance.

But the interview with Edwards apparently undermined the insinuations made by Fraser. Edwards said the memo she processed relating to David did not refer to Phala Phala or to the crime of theft.

She said she had received a report of an arrest of David and the request was dealt with as an illegal border crossing and a breach of Covid regulations. She did not even know if the president had a farm in Limpopo, said the report.

Other information submitted by Fraser was undermined upon further investigation. Evidence from a CCTV company was that footage and photographs that Fraser said were taken outside the president’s residence were, in most cases, really from a farm next door.

“There are no cameras inside the president’s house, which confirms that the footage wherein people were moving inside the house was not from Phala Phala farm,” said the report.

Interested parties are yet to make their submissions to the public protector and the final report may be different to the preliminary one.

DA leader John Steenhuisen said the DA’s main concern was the report misconstrued the nature of a conflict of interest. He said “on the president’s own version”, he had exposed himself to a potential conflict of interest as the break-in of his private business had been investigated — improperly, the public protector had found — using state resources.

Though the public protector had found no evidence that the president had directly instructed this improper investigation, Steenhuisen said Ramaphosa had met twice with Rhoode about the burglary. “It is highly improbable that it was not authorised by him,” he said.

Vuyo Zungula, the leader of the African Transformation Movement who filed the original complaint with the public protector, said he was barred from discussing the preliminary report with the media. But he said the Ngcobo report was “a more credible report as it was done by experts with over 100 years of experience in the legal field”. He said the members of Ngcobo’s panel were retired, “they are 100% objective as they don’t seek to grow their careers by having findings that are favourable to people with political power”.