IS President RAMAPHOSA ABUSING THE JUDICIARY AGAIN TO HIDE PHALAPHALA CRIMINAL ACTS AND CORRUPTION?

 

         By: Paul Ngobeni

 

Once again, President Ramaphosa has been misguided and ill-advised by his handlers and legal advisers to violate the constitution of this country in his response to the Phalaphala saga.  Propagandists posing as journalists have parroted the lie told by the State Attorney that Acting public protector Kholeka Gcaleka has instructed Ramaphosa not to disclose to anyone, including the high court, contents of his response to the 31 questions her office asked about the Phala Phala farmgate. If true, that unseemly interference with the court process in violation of Section 165 of the Constitution would certainly invite a professional misconduct complaint and the disbarment of the Acting Public Protector. 

 

Where the Constitution commands that all officials observe the foundational principle of accountability, responsiveness and openness embodied in the Constitution, Ramaphosa’s handlers have advised him to play fast and loose with information and to use every legal technicality to hide information.  Just like he did with the CR 17 funding Ramaphosa has once again turned to the judiciary to assist him in hiding information about his possible criminal wrongdoing at the Phalaphala farm.  Such antics have the potential to seriously and irreparably damage the integrity, credibility and reputation of the judiciary and the ANC as a ruling party. The ANC cannot claim to be a party committed to transformation while at the same time its leader is advised to revive the secrecy ethos of the apartheid regime. The system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations.  Contrary to the false claims that Ramaphosa is merely protecting his constitutional rights, when it comes to affairs of corruption, criminal wrongdoing involving tax evasion, money laundering and kidnapping of suspects, Ramaphosa is duty-bound to foster a culture of transparency and accountability in public by giving effect to the right of access to information.  He is bound to actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights and to combat the existential threat of corruption which has engulfed the country.

 

Instead of acting in line with the Constitution Ramaphosa has, through his attorney, filed an affidavit in the Western Cape High Court in which he claims to have "no objection" to providing his answers on the Phala Phala matter to the court deciding on advocate Busisiwe Mkhwebane's latest challenge to her suspension.   On the contrary, he falsely claims that he was instructed not to do so by the Public Protector's office.  This was a blatant lie. Before the Court, Ramaphosa denied any wrongdoing and had previously agreed to provide the High Court with a copy of his response to the 31 questions put to him over the break-in (and its alleged cover-up) by the Public Protector's Office as soon as he had filed them.  This solemn undertaking to the Court cannot be displaced by the Acting Public Protector’s prophylactic measures to avoid unauthorized leaking of information to the media. By no stretch of imagination can the Acting Public Protector purport to instruct a party not to divulge information to the Court – that would seriously violate Section 165 of the Constitution.  The pattern of playing hide and seek with both the public and the courts initially manifested itself in the sealing of the CR 17 records by the obsequious  judiciary and now Ramaphosa seeks to make that his modus operandi.  Advocate Kholeka Gcaleka would be well advised to keep her nose clean and avoid being dragged down into Ramaphosa’s lair of corruption, evasion and opportunism. She has already taken what might be interpreted as interference with the suspended Public Protector's litigation by denying funding and questioning her attorney's mandates. She is sailing dangerously close to the wind if she now imposes a veil of secrecy on Ramaphosa's responses and even instructs him not to disclose the same to the Court.

 

The above-mentioned antics follow closely upon President Ramaphosa’s abject failure to cooperate with the Public Protector’s investigation into his alleged criminal violations at Phalaphala farm – he only responded when threatened with a subpoena by the Acting Public Protector.  His conduct constitutes not only contempt for the Public Protector’s office but also a serious violation of the Constitution of South Africa. As a self-proclaimed author of the same Constitution Ramaphosa should know that Section 237 of the Constitution provides: “All constitutional obligations must be performed diligently and without delay.”  Section 237 unequivocally acknowledges the significance of timeous compliance with constitutional prescripts. On its terms, it elevates expeditious and diligent compliance with constitutional duties to an obligation in itself. The principle is thus a requirement of legality but Ramaphosa has thumped his sizable nose against all that.

 

The constitutional obligation shirked by Ramaphosa and which is investigated by the Public Protector is enshrined in Section 96 of the Constitution. That section prohibits the President and members of cabinet to (a) undertake any other paid work; and (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of' a conflict between their official responsibilities and private interests. We all know that around early June 2022 Public Protector Mkhwebane served Ramaphosa with a list of 31 questions he was required to answer by 22 June 2022. Instead of answering the questions expeditiously, Ramaphosa engaged in evasions, obfuscation and amateurish propaganda exercises.  He first suspended the Public Protector and then sought to implicitly undermine and intimidate the Acting public Protector by asking for extension of deadlines he knew were unreasonable and unlawful.

 

Initially Ramaphosa alleged that he was a victim of alleged “robbery” but was inexplicably silent on the origin of the vast amounts of US dollars in his possession that has aroused suspicion of criminal wrongdoing.  It also turned out that he only reported the crime to the head of his presidential protection unit who, in turn, mobilized other state resources from crime intelligence and private vigilantes to investigate, capture and torture the culprits who were forced to return some of the stolen money. The Public Protector’s investigation was designed to discover the truth about Ramaphosa’s failure to report the theft of large sums of money in foreign currency in accordance with the law, the well-founded suspicion that the money Ramaphosa squirreled away in furniture on his farm emanated from illicit activities, including money-laundering, bribery and others. Instead of being transparent and clearing up the air, Ramaphosa embarked on a self-serving propaganda exercise where he loudly protested that the stolen money comes from legitimate transactions and that he is a farmer who buys and sells livestock. That of course proves rather than refutes the notion that he has a case to answer under Section 96. Additionally, Ramaphosa made a bizarre argument that reporting the matter to the police or making public the theft occurrence would have caused panic to the farming community. It soon emerged that he allegedly enlisted the assistance of some of the members of the farming community to hunt down and torture the suspects. It appears from the discordant narratives to date that state resources were used in a manner calculated to frustrate and derail the course of justice. The head of Presidential Protection is a member of the SAPS and had a duty to report the theft and suspicious foreign currency to the Hawks. That was derailed by Ramaphosa’s unlawful instructions.  Newspapers are replete with reports that Rhoode allegedly assembled a posse of vigilantes who managed to track down, apprehend, interrogate and even torture the suspects who ultimately returned the loot.  I should add that Ramaphosa proclaimed at the recent SACP conference that he has all the answers to the Phalaphala allegations of wrongdoing.  That begs the question – why does he need such an extraordinarily long extension of time to provide answers he currently claims to have in his possession?

 

 Members of the public are fully justified in construing Ramaphosa’s maneuvering  as an attempt to evade questions about the theft of foreign currency on his farm. Ramaphosa had initially requested an extension of the first due date of June 22, which was granted to him.  His answers were due on 18 July 2022.  Cumulatively, his suspension of the Public Protector Mkhwebane shortly after he received the questions from her, his subsequent failure to meet the 18 July 2022 deadline coupled with an unjustifiable request for another thirty days extension have all the hallmarks of a stalling, evasive, manipulative and uncooperative witness. The Acting Public Protector, Advocate Gcaleka is fully justified in invoking her powers to subpoena the President to come forward and answer the questions.

 

Ramaphosa is fully aware of his obligation to comply with the requirements of the rule of law under section 1(c) of the Constitution in the context of Executive Members Ethics Act. The rule of law is a founding value of our constitutional democracy.  It commands that the state, in all its dealings, must operate within the confines of the law and, in so doing, remains accountable to those on whose behalf it exercises power. The supremacy of the Constitution and the guarantees in the Bill of Rights add depth and content to the rule of law.  Ramaphosa’s insouciance to his constitutional duties deserves serious scrutiny by the ruling ANC, the Speaker of the National Assembly and all citizens who care about the rule of law.

 

Furthermore, Ramaphosa’s failure to expeditiously comply with the request for information by the Public Protector raises issues of noncompliance with Section 181 of the Constitution which provides that state institutions such as the Public Protector are created to strengthen constitutional democracy in the Republic.  It further provides:

 

(2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

 

(3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.

 

(4) No person or organ of state may interfere with the functioning of these institutions.

 

(5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”

 

 

 

As the Constitutional Court elaborated on the “independence” of the Public Protector  in the matter of Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 as follows:

 

[49] Like other Chapter Nine institutions, the office of the Public Protector was created to “strengthen constitutional democracy in the Republic”. To achieve this crucial objective, it is required to be independent and subject only to the Constitution and the law. It is demanded of it, as is the case with other sister institutions, to be impartial and to exercise the powers and functions vested in it without fear, favour or prejudice… The constitutional safeguards in section 181 would also be meaningless if institutions purportedly established to strengthen our constitutional democracy lacked even the remotest possibility to do so.

 

Viewed in context, Ramaphosa’s actions highlight the following disturbing unconstitutional factors. The independence of the Public Protector is placed in doubt and she cannot be impartial and exercise her powers and perform her functions without fear, favour or prejudice because she was suspended by the criminal suspect Ramaphosa immediately upon commencing the Phalaphala investigation. Clearly, impartial investigations and adjudication turns on the independence of the Public Protector. Perhaps the most fundamental precept of independent investigation and judging is that the Public Protector be free from outside influence in decision making. Clearly, Public Protectors cannot investigate and resolve issues impartially if members of the executive being investigated have the power to suspend her or threaten to remove her from office or withhold support, ignore deadlines and refuse to answer questions expeditiously. The constitutionally mandated assistance and protection the Public Protector is entitled to has been flagrantly denied. Ramaphosa’s stalling and bullying tactics have severely undermined the public Protector’s “ independence, impartiality, dignity and effectiveness” all to the detriment of the public.  A president of country is a constitutional being by design – he owes the country’s citizens a larger solemn duty and should not be chased down through subpoena and compulsory process to force him to perform his constitutional duties.

 

We must all take stock of how other democratic countries deal with recalcitrant Presidents who employ dilatory and stalling tactics similar to Ramaphosa. Just recently former U.S. President Donald Trump paid a hefty $110,000 fine for his failure to respond to a subpoena in a civil investigation into his business practices. The payment of the fine was one of three steps Trump needed to take for a judge to lift a contempt of court order issued for his lack of cooperation investigation into whether the Trump Organization gave banks and tax authorities misleading financial information. Significantly, the judge held Trump in contempt and fined him $10,000 per day after finding it was not clear Trump had conducted a complete search for additional documents the investigator had requested.

 

Ramaphosa must be reminded that the citizens demand clear and unequivocal answers to the 31 questions posed by the Public Protector he suspended.  Evasions, obfuscations and shifting the goalpost simply will never suffice.  Why would a livestock farmer with a clear conscience avoid providing exculpatory records showing that he conducts legitimate and above board business? Why would a legitimate crime victim be coy about providing answers to questions about the crimes committed against him or his property? Is it not ironic that Ramaphosa recently told the SACP conference that he does “have answers” for Phala Phala, but is now determined not to provide them to the Public Protector until he is forced through threat of subpoena?  Why is he willing to endanger the career of the Acting Public Protector by claiming that she instructed him not to comply with a solemn undertaking he made to the court?

 

 

 

 

THE PUBLIC PROTECTOR IMPEACHMENT IS A PROFILE IN DISHONESTY, INCOMPETENCE AND COWARDICE

 

         Paul Ngobeni (An edited version of this article appeared in Cape Times, Friday, July 15, 2022)

 

The ill-fated impeachment proceedings of the Public Protector Mkhwebane currently underway was bound to expose the racism, dishonesty and mind-numbing incompetence of the constitutional experts, lawyers, parliamentarians and ANC members who regard the defence of Ramaphosa rather than  the constitution as their primary pre-occupation. 

 

The cracks in the case were exposed by very first witness, Hassen Ebrahim, who claimed he was part of the Codesa negotiations and the Constitutional Assembly, which drafted the Constitution in the 1990s. The self-proclaimed expert assiduously avoided dealing with the pivotal questions underlying the charges against the Public Protector. The first is the allegation that Advocate Mkhwebane exceeded her mandate and usurped the powers of parliament when she recommended an amendment to the constitution. Those who were involved in the CODESA negotiations would know the legislative background to the powers of the Public Protector as follows: In the wake of the Information Scandal under apartheid, an Ombudsman was created after amending the Advocate General Act by the Ombudsman Act of 1983. The purpose of this office was to ensure and maintain efficient and proper public administration. Importantly, in terms of section 11 of the Ombudsman Act 110 of 1983, the Ombudsman was empowered to act as a remedy to deficiencies in the legislation. In the exercise of the Ombudsman’s supervisory powers he was expressly authorised to propose or initiate a change in the statutes.

 

Suffice to state that during the multi-party negotiations the political parties agreed that South Africa should have a Public Protector (Ombudsman). In 1995 the office of the Public Protector replaced the Ombudsman. The false allegations against Advocate Mkhwebane have nothing to do with her overstepping her constitutional powers – her sin was that she stepped on the toes of big capitalists and their puppets. For this she has been tarred and feathered for her innocuous suggestions about legislative changes, a routine act that her predecessors Ombudsman under Apartheid were expressly empowered to do. Advocate Mkhwebane did not misunderstand or exceed her powers she merely annoyed agents of white monopoly capital who could not stomach her gumption to challenge their stranglehold on our economy. Now they hope to exact their revenge through her impeachment!

 

Another fallacy that the expert Ebrahim assiduously failed to confront is the issue of whether the Constitution itself envisaged Public Protector mandate expansion through legislation. Before South Africa’s advent to democracy, the office was previously known as the Office of the Ombudsman which was established on 22 November 1991. Making recommendations for legislative changes was expressly stated as the mandate mandate of the ombudsman. The Public Protector is part of a global family of what is traditionally referred to as “Public Service Ombudsmen”. Under Chapter nine of the South African Constitution, the Public Protector is one of the institutions that strengthens our constitutional democracy.  Indeed empirical evidence clearly shows that the Constitution anticipated Public Protector mandate expansion through legislation, and legislation passed since establishment of the office since 1994 has resulted in the Public Protector being a multiple mandate agency responsible for amongst other things,  the following key mandate areas:

·      Maladministration and appropriate resolution of dispute the Public Protector Act 23 of 1994(PPA). This transcends the classical public complaints investigation and includes investigating without a complaint and redressing public wrongs;

·      Her exclusive mandate for the enforcement of Executive ethics under by the Executive Members' Ethics Act of 1998(EMEA) and the Executive Ethics Code (Exclusive) – the President’s Phalaphala corruption shenanigans were due to be investigated under this provision until he launched a preemptive strike to suspend the Public Protector;

·      Anti-corruption as conferred by the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PCCAA);

·      Whistle-blower protection under the Protected Disclosures Act 26 of 2000;

·       Regulation of information under the Promotion of Access to Information Act 2 of 2000;(PAIA) and

·      Review of decisions of the Home Builders Registration Council under the Housing Protection Measures Act 95 of 1998.

 

The so-called constitutional expert failed to ponder the implications of the vast expenditure of public resources in an ill-fated Public Protector removal process where the Constitution itself provides its own prophylactic remedies. For good reasons, the Public Protector is appointed for a non-renewable period of seven years. It is the height of idiocy to spend four years being bogged down in a removal process where the Public Protector’s term of office is due to end in less than two years.  A real expert would have understood that the Public Protector’s constitutional mandate to investigate and report on improper conduct in state affairs, coupled with the imperative to be accessible to all people, inevitably requires a multi-pronged approach to handling complaints. It is absurd to suggest that our Public Protector now has less powers to make legislative changes than the powers enjoyed by her predecessor, the Apartheid ombudsman.

 

The evidence leaders were equally disingenuous and misleading when it came to the key evidentiary issues that the Section 194 Committee must consider – they argued that court judgments criticizing the Public Protector were binding on the Committee and the latter was not free to come to its own conclusions on the same issues. That argument has been rejected almost universally.  In the US, District Court Judge Alcee Hastings of Florida was initially charged in a criminal case for bribery but was acquitted. (See U.S. v. Hastings (1982) 681 F2d 70).  Thereafter, at the instance of his judicial colleagues, impeachment proceedings were commenced against him in the US Congress on 17 articles of bribery and perjury. The mere fact that he was acquitted did not prevent the impeachment proceedings from taking their course. On a recommendation of the Judicial Conference Judge Hastings was convicted, impeached and removed.  In South Africa, judge Legodi succinctly explained the principle in the GCB vs Jiba case as follows:

 

[82] Very often when adverse remarks are made in legal proceedings, the person against whom the remarks are made is not given the opportunity to state his or her case to the impeding adverse remarks. It is for this reason that courts do not easily make adverse remarks…Courts are of course willing to reconsider adverse remarks afresh given the responses by the person against whom they were made.

 

Why would the evidence leaders mislead the Committee in such a blatant manner suggesting that the Public Protector is bound by even erroneous court findings and that the adverse remarks cannot be refuted with clear evidence?  As I have previously written, the Mkhwebane case involves the false accusations that Mkhwebane relied on a wrong legal code or made up her own laws in order to find President Ramaphosa guilty of lying and breach of ethics. In the matter involving the CR 17 campaign funding, Bosasa matters and President Ramaphosa’s misrepresentation to parliament, the the Concourt ruled that:

The Public Protector … changed the wording of the Code to include “deliberate and inadvertent misleading” so as to match with the facts.  Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code.  It is unacceptable that the Public Protector did what no law had authorised her to do. …It was the wrong approach adopted by the Public Protector here which led her astray.  Instead of evaluating the President’s conduct against paragraph 2.3(a) of the Code, she measured it against a standard she had created…Para.61. See,Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19.

 

This was clearly false statement of facts by the court justices and was contrary to their previous ruling in the EFF vs Speaker case. All Cabinet members who have served in government since at least 2009 have been provided with a Ministerial Handbook which contains the 2007 Executive Ethics Code that includes“deliberate and inadvertent misleading.”  The Code has been used by the Public Service Commission in the inductions of Ministers and MECs since 2009 and no one has ever claimed that this was Mkhwebane’s mischievous invention until she made an adverse ruling against President Ramaphosa. The phrase “members may not deliberately or inadvertently mislead the president, the premier or, as the case may be, the legislature” is contained in the handbook used by the executive in a daily basis. But the parliamentarians are now urged to accept the entirely fictitious statement of the Concourt that the Code was invented by Mkhwebane. 

 

It is an injudicious falsehood to state that Mkhwebane invented the language explicitly stated in the Handbook. She did not make up her own version. But she is now supposed to be impeached on the basis of this gross distortion of her performance simply because she is a black woman who has offended Ceasar.

 

There is precedent for the victimization of black African women by the Ramaphosa-led ANC. Former NPA director Nomgcobo Jiba was exonerated by the Constitutional Court which vacated a disbarment judgments against her.  Ramaphosa ignored all that declaration of innocence and inititated removal proceedings against Jiba on the basis of the same evidence rejected by the apex court.  For black women the pattern of their tormentors is to devalue their performance or portray it in the worst light possible and then declare them incompetent and unworthy of any leadership position. This is reminiscent of what  happened to the late Winnie Mandela. She was also tarred, feathered and excluded from ANC leadership in 1995 after being falsely accused of corruption. Her sin was expressing her Pan-Africanist views to the world at a time when imperialist forces were infiltrating the ANC with their deep pockets. She posed a threat to the neoliberal Growth, Employment, and Redistribution (GEAR) policies as she advocated African autonomy and radical transformation of our society.

 

Mkhwebane, like Winnie Mandela before her, has been fighting a system that intends to block her from doing her mandated job effectively. Despite stellar performance including achieving historic clean audit in 26 years and maintaining that in two successive years, Advocate Mkhwebane has been dragged across the proverbial burning coals by the racist DA, some top ANC officials, some members of Parliament, and Corporate Media, in an orchestrated smear campaign against her. Her unwavering stance against corruption, strength and commitment to justice have remained resolute in the face of this visible and vindictive campaign that seeks to paint her as incompetent, lacking in intelligence, and ignorant of the law. Public resources are recklessly spent by enemies hell-bent on making sure her  outstanding reputation is shredded daily.  But there is a silver lining in all these vindictive and satanic moves – the ANC is being exposed as a party unfit to govern and with leaders beholden to white monopoly capital.