Issued by the FW de Klerk Foundation, on 05/07/2023

On 30 June, Acting Public Protector (APP) Adv Kholeka Gcaleka released her final report on allegations that President Ramaphosa had violated the executive ethics code in connection with the theft at his Phala Phala farm in February 2020.

The Report, issued in terms of Section 182(1)(b) of the Constitution, cleared President Ramaphosa of any wrongdoing. It found that:

• The allegation that the President improperly, and in violation of the provisions of the Executive Ethics Code, exposed himself to any risk of conflict between his constitutional duties and obligations and his private interests, has not been substantiated.
• The allegation that the President undertook remunerated work at the Phala Phala farm has not been substantiated.
• The allegation that the President abused his power in utilising State resources by causing the Presidential Protection Services (PPS) to be deployed to Phala Phala farm and to investigate a housebreaking with the intent to steal and theft at said farm has not been substantiated.

Yet, towards the end of last year, an independent panel, headed by former Chief Justice Sandile Ngcobo, found Ramaphosa may have committed serious violations of the Prevention and Combating of Corrupt Activities Act and the Constitution “by exposing himself to a situation involving a conflict between his official responsibilities and his private business”.

Accordingly, questions will inevitably be raised regarding the Report’s credibility. It is a matter of public record, confirmed by the Report, that President Ramaphosa had been personally involved in reporting and investigating the farm theft. However, the APP finds that President Ramaphosa had no duty to report the theft because the farm was “managed by a private entity” – while, at the same time, declaring that because the farm is the “President’s private residence” he “is entitled to [PPS] protection”.

Although one may accept that the President need not necessarily be aware of developments in his businesses that are managed at arm’s length while he is in office, surely he must reasonably be expected to answer questions regarding the theft of clearly unauthorised foreign currency from his personal dwelling?

In fact, the Report passes the buck to SAPS, specifically Gen Rhoode and Sgt Rekhoto, stating that they “acted improperly by investigating the housebreaking without a registered case docket”.

The Report does the same with the burning question: how did almost R10 million in foreign currency come into the country without being cleared by SARS? “The President submitted that on 9 February 2020, an amount of Five Hundred and Eighty Thousand US Dollars (US$580, 000) in cash, was stolen from Phala Phala farm. He stated that the money was kept in a room in his house where it was thought it would be safe”. Last year, SARS confirmed that this money had not been declared when it arrived in South Africa.

The Report states that “The investigation and adjudication of issues relating to compliance with foreign exchange regulations, compliance with tax, and allegations of criminality all fall within the domain and/or jurisdiction of SARB, SARS, DPCI and IPID. For this reason, the Public Protector deems it expedient that these public entities finalise all their institutional determinations regarding whether there was any transgression of any prescripts related to foreign exchange control, tax compliance and criminality in connection with the theft of foreign currency at Phala Phala farm”. But how can the Acting Public Protector possibly find that the President did not violate the Executive Ethics Code until the outcome of these crucial investigations is known?

The Report goes on to state: “The Public Protector does not support the allegation that the President’s financial interests in game and cattle farming at Phala Phala farm expose him to any situation involving the risk of a conflict between his official responsibilities and his private interests in violation of the Executive Ethics Code”. Once again, how can the APP reach this conclusion until the outcome of the investigation into “compliance with foreign exchange regulations, compliance with tax, and allegations of criminality” is known?

Is it comprehensible that such a large sum of money could be brought into the country without disclosure and that it could be stored in the President’s personal home at Phala Phala “for safety” without him having any knowledge of the transaction? And once the President became aware of the theft, why was he unable to follow the correct path to report it to the police – despite having access to the best advisors and lawyers in the country?

When Mr Ramaphosa first assumed office in February 2018, his Presidency was welcomed as “a New Dawn” following the dark night of his predecessor, whose presidency was characterised by the capture of key State institutions to facilitate unrestrained corruption.

Does Adv Gcaleka’s Report signal the end of President Ramaphosa’s “New Dawn” and the coming of another night? The Foundation will continue to monitor the judicial challenges that will be brought against the Report and hopes that – through this process – the outstanding questions will be answered.

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