THE African Transformation Movement (ATM) has told the North Gauteng High Court that Public Protector Kholeka Gcaleka should account and answer for her report which cleared President Cyril Ramaphosa of any wrongdoing regarding the Phala Phala #Farmgate scandal.
The party said this in its application to set aside Gcaleka’s report.
This was after the Public Protector’s office filed its answering affidavit through the acting executive manager of the Public Protector’s investigations branch, Vusumuzi Dlamini, in March this year.
In the affidavit, the party’s president Vuyo Zungula said Gcaleka did not file a substantive affidavit and that instead, she filed a short affidavit confirming the contents of Dlamini’s affidavit.
Zungula argued that Dlamini cannot answer for the decision of the Public Protector to approve and sign the final version of her report.
He said Gcaleka bears statutory responsibility for her report and she alone must account for it.
Public Protector spokesperson Khulu Phasiwe confirmed receipt of the ATM’s replying affidavit, adding that this was not a new application but part of the original litigation.
“The parties will file their respective heads of argument, and later, the matter will be ventilated by hearing on a date still to be set,” said Phasiwe.
Zungula said in the original application filed in July last year, the party challenged the report signed by Gcaleka and her decision to approve it without calling certain witnesses to give evidence, considering the material and relevant information, as well as investigating matters relevant to whether Ramaphosa violated the Constitution and the Executive Ethics Code.
Last year, the report of section 89 independent panel chaired by retired Chief Justice Sandile Ngcobo found that Ramaphosa had a prima facie case to answer and that he contravened sections of the Constitution.
However, Gcaleka cleared Ramaphosa of allegations of violating the executive ethics code and abuse of power by utilising the police’s presidential protection service to investigate housebreaking and theft of $580 000 (about R8.8 million at the time the money was stolen), which was proceeds of the purchase of buffalo at his Phala Phala farm in Limpopo in February 2020.
The money was hidden in the furniture.
Zungula continued that only Gcaleka could account for her final decision, adding the courts have previously made it clear that Dlamini could not account for the Public Protector’s decision to approve the report.
“The courts have also confirmed that there is no answer to contend that Mr Dlamini was involved in the investigation process. The Public Protector has a to ask the court to account for her decision,” read the affidavit.
“The fact that Mr Dlamini might have gathered the evidence and prepared the report does not assist in accounting for that which Ms Mkhwebane (the previous Public Protector) alone can answer for,” Zungula continued.
He said it was ultimately Gcaleka’s decision not to interview farm manager Simphiwe Ndlovu, who allegedly stashed the money in the furniture, and obtain any evidence from domestic worker Froliana Joseph, who allegedly tipped off the criminals about the cash and led them to steal it.
Zungula added that it was also Gcaleka’s decision not to obtain the tax records of Ntaba Nyoni Estate, which owns the Phala Phala farm. Zungula said this was despite believing that it would have been in the public interest since the disclosure was reasonably believed that it would reveal evidence of a substantial contravention or a failure to comply with the law by the President.
He said Gcaleka understood that other paid work contemplated by section 96(2)(a) required the President to draw a salary and be physically present on the farm.
Zungula also required the court to scrutinise the lawfulness of Gcaleka’s report with reference to her report and her report only.
“Mr Dlamini is not entitled to provide an ex post facto rationalisation of the findings of the Public Protector, nor is he entitled to side-step what the Public Protector actually found.
“The Public Protector is required to explain why she conducted a proper investigation that asks and seeks out information that ensures that all of the relevant information fits into place,” Zungula said.
He said neither Dlamini’s affidavit nor Gcaleka’s “confirmatory affidavit” explained why crucial information was not considered and why aspects of the investigation were not undertaken.