ATM’S Phala Phala stance is ‘nit-picking’
The president said the African Transformation Movement sought to fashion evidence on the ethics code by twisting his public statements
President Cyril Ramaphosa has described a legal challenge to the public protector’s report clearing him of breaching the law in the Phala Phala controversy as a case of mere carping and misconstruction.
“It is an unfortunate nit-picking exercise and a criticism of the manner in which the first respondent [the public protector] went about her investigation,” he said in his heads of argument filed to the Pretoria high court.
The African Transformation Movement (ATM) last year embarked on a legal review of public protector Kholeka Gcaleka’s findings, arguing that she had failed to investigate the matter with an open mind and that the outcome had been a foregone conclusion.
Ramaphosa, the second respondent, said the ATM had misread the law and the facts and failed to advance proper grounds for review. “This overarching and generalised castigation of the public protector cannot assist in relation to a challenge for which no case is made out.”
The standard for review was whether a decision was one that a reasonable decision-maker could not reach, not whether it was the best decision to make.
“A disagreement with a decisionmaker about the wisdom or otherwise of choices that a decision-maker makes from a range of available possibilities is not a basis for review.”
What the ATM was doing, the president suggested, was challenging a decision on the simple basis that it was not the one it would have liked.
In her report released in June last year, Gcaleka found that allegations that Ramaphosa had acted in a manner inconsistent with his office in his response to the burglary at his game farm could not be sustained.
She said the evidence before her did not support the allegation that the president did paid work outside of his official duties and had thus breached the Constitution and the executive ethics code.
She declined to investigate an allegation that he had breached section 34 of the Prevention and Combating of Corrupt Activities Act (Precca) by not reporting the theft of foreign currency from the farm to a police station, saying she lacked the power to deal with it because that resided with the Directorate for Priority Crimes Investigation (the Hawks).
The ATM filed suit the following month and said the report pointed to several fatal flaws in the investigation.
It faulted Gcaleka for not obtaining oral evidence from the farm manager, Sylvester Ndlovu, who discovered that money hidden in a sofa had disappeared, and for not subpoenaing the housekeeper on the farm, Froliana Joseph, to give evidence.
It further argued that she acted irrationally and unlawfully by failing to investigate whether Ramaphosa had committed a tax violation or an exchange control violation.
Gcaleka could and should have obtained the tax records of Ramaphosa’s Ntaba Nyoni Estate, which owns Phala Phala, to determine whether he violated the executive code, ATM leader Vuyo Zungula argued in his founding affidavit.
Her decision that this line of inquiry belonged with the South African Revenue Service amounted to a dereliction of duty. Similarly, she had abdicated her obligation to investigate a potential breach of Precca, instead of working in tandem with the Hawks.
Zungula also accused Gcaleka of ignoring evidence that Ramaphosa had played an active role in the sale of livestock before reaching the conclusion that he did not perform paid work and hence remained within the bounds of the law.
Ramaphosa’s heads of argument centre mainly on this complaint.
He said the ATM had no evidence to contradict Gcaleka’s findings but sought to fashion proof out of statements he had made about the source of stolen money.
This included the president telling an ANC conference “I buy and sell animals” and “I am a farmer”, and telling the public protector that he had advised staff at the farm that there were potential buyers from the Middle East and Africa for the buffalo in question.
In his court papers, he said there was “not a scintilla of evidence” for the ATM to conclude that he had personally sourced the buyers and set the sum paid by a Sudanese buyer.
It was the applicant’s take on what he told staff and such an inference did not stand up as legal argument.
“The case sought to be made by the ATM is based on selectively quoting from my response to the ANC conference and then twisting my words. The ATM rhetorically asks how I would have known of such buyers if I was not sourcing buyers myself.”
He insisted that he did not play an active role in the running of the farm, saying, “Phala Phala operates independently of me.”
Ramaphosa added: “I am the sole member of the close corporation that runs the farming business but I did not and still do not work for it.”
Section 96(2)(a) of the Constitution barred him from undertaking “any other paid work”, Ramaphosa said, before noting that the report made plain that the purpose of the prohibition was to ensure that members of the executive gave their undivided attention to their official functions.
“It does not prohibit all forms of income-generating activities — especially not passive income-generating activities.”
The ATM’S argument that the public protector’s conclusion was irrational was therefore not grounded in a proper reading of what section 96(2)(a) meant, nor in evidence, but amounted to criticising the public protector “for not reaching the conclusion it would have preferred”.
Ramaphosa said the ATM’S other complaints were equally spurious. Those relating to tax and exchange control violations and the failure to obtain oral evidence from staff “cannot possibly have anything to do with this challenge”.
Regarding Gcaleka’s decision not to investigate him for breach of Precca, Ramaphosa said she was not empowered to take action because this did not fall in section 6(4) of the Public Protector Act.