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?