Phala Phala: The PP defanged

William Saunderson-Meyer deconstructs Kholeka Gcaleka's exoneration of Cyril Ramaphosa


Time-wasting legal ploys, ignoring the findings of his own judicial inquiries, shielding allies while prosecuting foes, and browbeating his party’s MPs to avoid impeachment. 

These were all tactics used by disgraced former President Jacob Zuma to cling to power and to avoid answering in court to what, on the face of it, looked awfully like criminal corruption. He also had one notable failure.

Virtually the only state institution to prevail against Zuma’s arsenal of evasion, collusion and subversion was the Office of the Public Protector (PP). For it was Advocate Thuli Madonsela’s report into illegal state spending on Zuma’s rural Nkandla home that started his slide into ignominy, culminating in the resignation that ushered Cyril Ramaphosa into the presidency.

Ramaphosa, a deft understudy during his four years as deputy president, has deployed all of Zuma’s above stratagems. As with Zuma, the objective was to stall having to answer for what, on the face of it, looks awfully like criminal corruption. ___STEADY_PAYWALL___

But Ramaphosa, for the coup de grâce, has now gone one better than his old boss and mentor.  Also facing, ironically, an investigation into presidential domestic shenanigans — in CR’s case, a large amount of US dollars stolen from the sofa in which they were hidden on his Phala Phala game farm — the president has pulled off a move that will surely leave Zuma green with envy. 

He has managed to defang the PP. 

Last Friday, just as the news cycle collapsed into its weekend stupor of sport and entertainment, the acting PP, Kholeka Gcaleka, released a slew of reports into minor investigations. Among them was also her long-awaited report on the Phala Phala controversy. 

The political commentariat had not expected much of Gcaleka and she performed entirely to expectations. She dished up a report that was as convoluted and tricky to unravel as a plate of congealed spaghetti and about as unappetising. 

By interpreting her mandate as narrowly as possible and at every turn ignoring the important in favour of the peripheral, Gcaleka was able to exonerate Ramaphosa of any wrongdoing of any kind, anywhere, at any time. Whenever there was the danger of blame or responsibility attaching to the president, she deflected it by either uncritically accepting his version, or else dodged it by deeming anything nettlesome to be beyond her remit. 

However, being a firm believer in the philosophy that shit flows downhill, the PP did find the major-general head of the Presidential Protection Service and one of his sergeants responsible for maladministration and improper conduct during their housebreaking investigation. The SA Police Service was ordered to take “appropriate action” against the two within 60 days and to develop “appropriate policies” on how the PPS should in future manage crimes reported by VIPs. Some kind of Keep Your Boss Out of Jail manual, one imagines.

Since Major-General Wally Rhoode is an old pal of Ramaphosa — he was deployed despite a lack of police experience because he is a trusted confidante — be assured that whatever punishment is meted out will be fleeting. Rhoode distinguished himself during last month’s peace mission debacle, which saw him, his posse of 120 heavily armed presidential bodyguards and a media contingent, marooned in a plane at Warsaw airport for 26 hours, by calling the Poles racist saboteurs. By the logic that operates in the ANC, there may be a European ambassadorship in Rhoode’s near future. 

Gcaleka’s key finding is that the president did not violate the Executive Ethics Code by exposing himself to “any risk of conflict between his constitutional duties and obligations and his private interests”. While she conceded that Ramaphosa was “more involved in the management of [Phala Phala] than he appears to let on”, she said there was no evidence that this exposed him to any risk of conflict. 

This is in stark contrast to the findings of an earlier Phala Phala inquiry, the three-person Judicial Inquiry Panel, headed by former Chief Justice Sandile Ngcobo. The Ngcobo Panel was last year ordered by Parliament to establish whether Ramaphosa’s conduct in respect of Phala was possible grounds for an impeachment inquiry. 

The Panel, like Gcaleka, leant over backwards to be generous to Ramaphosa. Unlike Gcaleka, the Panel came to deeply damning conclusions. 

(Gcaleka engages only fleetingly with the Panel’s findings, not to rebut but to note that since the Panel had not found the president guilty of any specific act, this meant she, too, could not possibly make an adverse finding. It’s embarrassingly simplistic reasoning for an advocate in one of the top judicial jobs in the country.)

In its report, the Ngcobo Panel acknowledged that an impeachment inquiry should not be entered into lightly. It was “a momentous act” that was justified only when there was sufficient evidence that the president’s conduct was beyond that of mere, forgivable, misdemeanours. 

The Panel concluded that there was, on the balance of probabilities, evidence of “serious violations” of the Prevention and Combating of Corrupt Activities Act and the Constitution of the Republic. They also suggested that Ramaphosa had lied to them.

Unlike the PP, who gently intimates that Ramaphosa was not always telling the full story, the Ngcobo report is more brutal. It describes Ramaphosa’s accounts as often being “vague” and “leaving unsettling gaps”. It found “troublingly unsatisfactory features in the explanation of the source of the foreign currency given by the President … [and] weighty considerations which leave us in substantial doubt as to whether the stolen foreign currency is the proceeds of a sale.”

One should remember, although the media seems hellbent on forgetting, that Ramaphosa has form regarding misleading judicial commissions. Justice Ray Zondo’s Commission of Inquiry into State Capture, too, found Ramaphosa’s answers self-servingly vague. Zondo was particularly sceptical of the president’s claims that there were no records of the ANC cadre deployment committee that he had chaired for five years during the Zuma presidency.  

Zondo said in his report that it was “improbable” that there were no records. He was subsequently proven right. When the Democratic Alliance took the ANC to court to force disclosure of the cadre committee’s minutes, it transpired that the minutes had been there all the time. In other words, Ramaphosa had lied under oath to a judicial commission.

Predictably, opposition parties have been angered by the PP’s report, which they variously have described as a “whitewash”, “legally unsound” and “fundamentally flawed”. They justifiably harp on the PP’s determinedly narrow focus and the herd of elephants in the room — buffaloes in the lounge? — that she ignores.

DA leader John Steenhuisen says Gcaleka has tried to paint Ramaphosa as “nothing more than an innocent bystander” to Phala Phala, improbably “oblivious to the workings” of the protection service and his presidential responsibilities. ActionSA says her report leaves unclear “why the dollars were hidden in a couch, why they weren’t declared to the revenue service, and why a covert operation took place to investigate the crime when a [police] case had never been opened”.

That the PP’s flimsy exoneration of Ramaphosa will be challenged in the High Court may not trouble Ramaphosa overmuch. Again, Ramaphosa has learnt well from the Zuma playbook on how to use judicial processes to sidestep nasty political consequences, if only temporarily.

The Panel’s impeachment inquiry last year came at a most inopportune moment for Ramaphosa, releasing its findings just weeks before the ANC’s December leadership conference. But a judicial duck and swerve pulled it off for him. 

He applied to the Constitutional Court for direct access to set aside the Panel’s report. This avoided an unfavourable High Court ruling, since he knew that the apex court would insist on due process.

By the time the ConCourt dismissed his application in March, it no longer mattered. Parliament had refused to conduct an impeachment investigation and the ANC presidency battle had been won. Ramaphosa — surprise, surprise — announced he would not, after all, mount a challenge in the High Court.

With the PP report and all the other investigations into Phala Phala, Ramaphosa is again just playing for time. For the sake of the ANC, he needs to remain in office until after the 2024 general election, following which he is widely expected to resign. 

So, Ramaphosa’s version of Zuma’s Stalingrad Defence is going well. 

The separate investigations by the Hawks, the Reserve Bank, the Revenue Services, the Financial Intelligence Centre, and the Department of Home Affairs, all seem to have petered out. Any court challenges to the PP’s report, as well as the inevitable appeals and counter-appeals, will comfortably run down the clock in Ramaphosa’s and the ANC’s favour.

Everything is hunky dory, except for democracy and accountability. The Protector’s office, an institution mandated to safeguard those constitutional virtues, has taken another body blow.

First Zuma, then Ramaphosa. Both are just the same. Squishy peas in a rotten pod.

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