The Public Protector's preliminary investigation into the Phala Phala break-in has cleared President Cyril Ramaphosa of certain of the charges that a section 89 panel said he should face an impeachment inquiry over. Karyn Maughan looks at the two big differences in those reports.
Months after a section 89 panel which recommended that Cyril Ramaphosa should face an impeachment inquiry over the Phala Phala break-in and its alleged cover-up, Acting Public Protector Kholeka Gcaleka has reached vastly different conclusions about the president's blameworthiness in the saga.
At the outset, it is important to stress Gcaleka's investigation was focused on determining whether Ramaphosa had violated the Executive Ethics Act in relation to the February 2020 burglary, which saw at least US$580 000 - which had been stuffed into a sofa in his home at the farm for weeks after an alleged buffalo sale - being stolen.
She has been at pains to emphasise that criminal, tax, and SA Reserve Bank (SARB) investigations were already taking place and were outside the mandate of her office.
In any event, citing taxpayer confidentiality and legal prescripts, both SARS and the SARB have declined to provide the Public Protector with information relevant to her investigation.
In its report, the section 89 panel stressed its task was not to establish Ramaphosa's guilt, but to determine whether there was a prima facie case for him to answer.
After determining there was "information" before it that disclosed "prima facie" the president may have violated the Constitution, committed serious misconduct, and violated anti-corruption legislation, the panel recommended he face an impeachment inquiry.
No direct access
The ANC's majority voted against this by 214 to 148, effectively ensuring that - at least for now - Ramaphosa would not be investigated by Parliament.
The president had attempted to challenge the section 89 report in the Constitutional Court but was refused direct access earlier this month.
He has yet to indicate whether he will now challenge the report, which he contends is legally ill-founded, based on rumour and speculation and unfair to him, in the High Court.
Whether Ramaphosa goes to court or not, the reports produced by the section 89 panel and the Public Protector will almost certainly be at the centre of future legal and parliamentary processes - and that's why it's important to understand how and why they are so different, given that they traversed many of the same issues.
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While the section 89 panel saw its role as establishing whether there was indeed a case for Ramaphosa to answer and had limited powers in terms of the information it could access, Gcaleka's report will ultimately be final - and therefore far susceptible to legal challenge.
She also has a far greater burden of proof in that all the findings she makes must be based on concrete evidence rather than suspicion or speculation.
Did Ramaphosa's Phala Phala farming amount to "paid work"? And did he expose himself to a potential "conflict of interest" because of it?
The section 89 panel found there was a case for Ramaphosa to answer on whether he had violated the Constitution by undertaking "paid work" - outside of his job as president - at Phala Phala.
Gcaleka had, in turn, investigated whether Ramaphosa had violated the Executive Ethics Code by conducting "paid work" and probed whether this alleged "paid work" could potentially result in him being embroiled in a conflict of interest between his role as president and his private interests.
Ramaphosa had contended to both the panel and the Public Protector that Ntaba Nyoni, a closed corporation which operated as Phala Phala Wildlife, "is a separate legal entity".
"I am the sole member of the close corporation, but I do not work for it and do not get any remuneration from Ntaba Nyoni. From the inception of Ntaba Nyoni in and around 2001, I have invested my and my family's money to fund its operations largely at a loss.
"To suggest that I undertake paid work on or through the farm is mistaken. I plainly do not. While I have an interest in Ntaba Nyoni as a game and cattle farming operation, I do not conduct any paid work on or in relation to the farm as referred to in Section 96[2][a] of the Constitution."
He added:
I do not perform paid work for Ntaba Nyoni - nothing I said has ever suggested as much - nor do I receive remuneration for work or service other than my functions as President in the service of the people of South Africa. Much like a shareholder of a company, who receives no remuneration, I am not on any payroll other than that of the Presidency.
The section 89 panel did not accept that explanation and contended Ramaphosa had "adopted a narrow view" of the words "paid work".
"We think the words 'paid work' means work for financial gain or reward whether as employees or self-employed," they said, before adding there was evidence Ramaphosa was "actively involved" in the running of the Phala Phala farm.
They further found "the fact that the CC may be running at a loss is irrelevant".
Paid work remains paid work irrespective of whether the entity may be running at a loss. The president has not provided us with any record showing that the business is running at a loss. The farm has recently sold another parcel of buffaloes. In any event, his remuneration is what he is entitled to as a member of the CC such as the dividends.
In submissions to the Public Protector, which included references to Ntaba Nyoni's confidential financial records, Ramaphosa denied he had received any dividends from the entity. He further stated the only amounts he received from Ntaba Nyoni were partial loan repayments.
Gcaleka ultimately found the term "paid work" in the Executive Ethics Code meant "a member of Cabinet must not, regardless of the form of work or agreement in place, be paid or receive remuneration in respect of any work, other than work related to his or her duties as a member of Cabinet".
She concluded the allegation the president had "improperly and in violation of the provisions of the Executive Ethics Code exposed himself to any risk of a conflict between his constitutional duties and obligations and his private interests arising from or affected by his alleged paid work" at Phala Phala was "not substantiated".
"Following the inspection of the president's register for financial interests, it is concluded that the president retains a financial interest as an investor and trustee in the form of member's interest at Ntaba Nyoni as described in paragraph 6 of the Executive Ethics Code," Gcaleka said.
Similarly, the evidence before the Public Protector does not support the allegation that the president's financial interests in game and cattle farming at Phala Phala farm exposes him to a risk of a conflict of interest or exposes him to any situation involving the risk of a conflict between his official responsibilities and his private interests.
She concluded "to have a financial interest as an investor and trustee in a business is completely distinguishable from working, being employed and receiving remuneration for contributing to the operations of the business".
While the section 89 panel had raised a number of questions about the source of the US$580 000 stolen from Phala Phala, Gcaleka found "evidence and information before the Public Protector" indicated the money emanated "from a private cash transaction between private persons".
"Mr Mustafa Mohamed Ibrahim Hazim, a citizen of Sudan, arrived in the country on 23 December 2019 and thereafter purchased buffalo at Phala Phala farm on 25 December 2019," she said.
"Mr Sylvester Ndlovu, an employee of Ntaba Nyoni Close Corporation received a cash amount of US$580 000 on 25 December 2019 and issued a cash payment receipt as proof of transaction to Mr Hazim.
"It is apparent from the evidence before the Public Protector that the president was not at the Phala Phala farm during this transaction and did not play a role in the sale."
She found, in contrast to the section 89 panel, the evidence before her did not support the allegation that Ramaphosa's interests in game and cattle farming "exposes him to any situation involving the risk of a conflict between his official responsibilities and his private interests".
Gcaleka said she could not find evidence Ramaphosa was actively involved in Phala Phala's day-to-day operations.
Did Ramaphosa fail to report the Phala Phala break-in and abuse his power by causing Presidential Protection Services officials to be deployed to his farm?
The section 89 panel found there was "prima facie" evidence Ramaphosa had violated the provisions of the Prevention and Combatting of Corrupt Activities Act by failing to report the Phala Phala break-in to the Hawks, as it found he was required to do.
Ramaphosa told both the panel and the Public Protector he had reported an alleged "security breach" at Phala Phala to Major-General Wally Rhoode, his head of security. He said he reported the burglary at the property the following month after establishing what had happened.
The panel did not accept that evidence and found it had been "established" by the information presented to it that the president had "immediately" reported the theft to Rhoode "because he wanted General Rhoode to investigate the crime".
It added information placed before it had "prima facie" established that Rhoode "was not given instructions to report the matter to any SAPS police station and that is why no case was registered with any police station, and no docket was opened".
"The investigation was deliberately conducted outside of the normal procedures for investigating crime… The team went to Phala Phala where they interrogated some of the farm workers and suspects. In the course of the interrogation, they were told that the suspects were in Cape Town. They went to Cape Town as part of this investigation."
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The panel further found there was "prima facie" evidence Ramaphosa "sought assistance from the president of Namibia in apprehending [one of the Phala Phala suspects] who was in Namibia at the time and General Rhoode went to Namibia in the pursuit of the investigations of the housebreaking and theft of money".
It concluded that, based on all the information placed before it, there was a "prima facie" case Ramaphosa "thrust himself into a situation where there was a conflict of interest between his official responsibilities as the head of state and as businessperson involved in cattle and game farming; and acted in a manner that was inconsistent with his office".
In perhaps some of the most damaging "prima facie" findings made against Ramaphosa, the panel found "the information presented to the panel establishes, prima facie, the money that was stolen was probably more than US$580 000".
"The cumulative effect of all of this is that there is a substantial doubt about the legitimacy of the source of the currency that was stolen. This is a very serious matter, which, if established, renders the violation of Section 96 of the Constitution and PRECCA, a serious violation, and a serious misconduct," it said.
Gcaleka, however, provisionally found the allegation that Ramaphosa "failed to report the crime that took place at Phala Phala farm and abused his power in utilising state resources by causing the [Presidential Protection Service] to be deployed to Phala Phala farm and to investigate a housebreaking with the intent to steal and theft at the said farm" was "not substantiated".
"The evidence placed before the Public Protector neither supports the allegation that the president failed to report the crime of housebreaking with the intent to steal and theft of cash in foreign currency at his residence in Phala Phala farm, nor does it support the allegation of abuse of power in utilising state resources by causing the PPS to be deployed to Phala Phala farm and to investigate the crime of housebreaking with the intent to steal and theft at Phala Phala farm," she stated.
She accepted Ramaphosa's account that he had first reported a "security breach" at Phala Phala to Rhoode on 10 February 2020 and then subsequently reported the theft of the dollars to him on 2 March 2020.
She added Rhoode had confirmed Ramaphosa "reported the incident to him as a police officer and as the head of PPS, without giving him any specific instructions regarding how he should deal with the matter".
Gcaleka was also not convinced Ramaphosa had abused his powers in utilising state resources by causing PPS officers to be deployed at Phala Phala "and to investigate the crime of housebreaking with the intent to steal and theft" after the break-in.
She nonetheless found these officers - Rhoode particularly - had "acted improperly" by investigating the crime, for which a case was never officially opened.
Gcaleka did not buy Rhoode's claims he had reported the Phala Phala break-in to the late Lieutenant-General Fannie Mfazi, who was not, in any event, his direct superior.
"Further evidence before the Public Protector reveals that General Rhoode assembled his own investigation team and subsequently engaged in an unofficial criminal investigation, which included interviewing suspects, witnesses, conducting surveillance, travelling to Cape Town to trace suspects, collecting evidence and compiling a report in connection with the crime of housebreaking with the intent to steal and theft at the president's house in Phala Phala farm," she said.
Although Gen. Rhoode contends that he was only conducting a preliminary investigation on the security breach to establish a threat on the President's safety on the instruction of Lt Gen. Mfazi, his contention is not supported by the evidence at hand.
With regard to claims Ramaphosa had sought the assistance of Namibian President Dr Hage Geingob, Gcaleka noted "the jurisdiction of the Public Protector does not provide for powers and methods of collecting evidence from foreign sovereign states".
Significantly, both the section 89 panel and the Public Protector have found evidence of an "off the books" PPS investigation into the Phala Phala break-in. While the names of suspects and their alleged big purchases after the theft have been highly publicised, none have been arrested.
The major difference in these reports lies in the question of Ramaphosa's knowledge of, and involvement in, that seemingly rogue investigation.
The panel's clear suspicions about the source of the US$580 000 - fortified by Hazim's failure to collect the buffalo he allegedly bought for over two years - meant it strongly suspected that PPS was involved in a cover-up.
Arguably, unless the panel's report is overturned in court or a proper investigation concretely establishes that the source of that money was legitimate, questions over this 2020 break-in will continue to cast a shadow over Ramaphosa's presidency. And it will be very long.
- Karyn Maughan is a senior legal journalist at News24.
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