The public protector’s final report into the 2020 theft at the president’s private farm was always going to elicit controversy. It is therefore unsurprising that Friday’s report into the Phala Phala scandal has been roundly condemned and derided as a whitewash.
As expected, the acting public protector, Kholeka Gcaleka, released a report that, in effect, clears President Cyril Ramaphosa of having conducted private business. This was not remunerative work, it concluded. Instead, she and her team of mandarins went to great lengths in explaining the concept of remunerative occupation — something that would have found Ramaphosa on the wrong side of the Executive Members Ethics Act, which governs the conduct of ministers, the deputy president and the president. For the president, the punishment would be impeachment.
The probe, started by Gcalaka’s suspended predecessor, Busisiwe Mkhwebane, was triggered by the following factors: a former chief spy, Arthur Fraser, laid a criminal charge accusing Ramaphosa of hiding a theft at his private game farm and covering it up by not reporting it (as he should have done). Worse, the theft involved US dollars. These are serious charges.
In November 2022, the ANC-dominated parliament commissioned an inquiry, chaired by former chief justice Sandile Ngcobo, to look into allegations over the president’s farm. After the document review, it found there was a case for Ramaphosa to answer. After considering his resignation, Ramaphosa’s political bouncers — including Gwede Mantashe, Enoch Godongwana and Mondli Gungubele — persuaded him to recant. He did.
Critics of the report have attacked it on several grounds. These include its narrow focus and that Mkhwebane was suspended by Ramaphosa days after beginning the probe into the Phala Phala theft due to a complaint filed by the African Transformation Movement.
The other worrying factor is the perception that Gcaleka cleared Ramaphosa because she is eyeing Mkhwebane’s job, which becomes available in October.
A year ago, similar claims were made about then deputy chief justice Raymond Zondo before his elevation to the head of the Constitutional Court. The Judicial Services Commission (JSC), a multiparty structure chaired by the chief justice to recommend judges to the president, didn’t have Zondo, who chaired the state capture inquiry, as its top candidate.
Still, Ramaphosa picked Zondo and made justice Mandisa Maya, then head of the Supreme Court of Appeal and the JSC’s first choice, the deputy chief justice. At the time, there was reasonable apprehension that Zondo, who was finalising the state capture report, would let Ramaphosa off lightly to enhance his chances of promotion.
Gcaleka’s report, her first high-profile one, is helpful to Ramaphosa but is hardly the end of the road for this controversy. The court challenges, threatened by the opposition, will keep the matter alive. He has other problems too.
Wally Rhoode, his controversial security chief and the man to whom Ramaphosa reported the Phala Phala theft, was criticised for conducting a private investigation into the crime and not properly reporting it. Gcaleka recommends action be taken against him by the national police commissioner. The other problem is Bejani Chauke, a former political adviser to Ramaphosa who has been linked to the scandal. Even though Chauke has formally resigned from his government post, he continues to advise Ramaphosa, allegedly without pay. This is inappropriate.
While a disciplinary hearing may yet clear Rhoode, his proximity to Ramaphosa is problematic. Ramaphosa should now cut ties to Rhoode and Chauke.
As for the selection process of the next public protector, perhaps it is time this process was reviewed. It shouldn’t be done to address the current special circumstances. But it should be done to insulate the process from innuendo.
Nominees are shortlisted by a parliamentary committee, and the National Assembly votes on the final candidate it recommends to the president. A sensible alternative would be a hybrid version: have public nominations from which a shortlist is drafted, and then have the shortlisted candidates interviewed by the JSC for recommendation to the president.
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