The ANC's economic transformation head, Mmamoloko Kubayi, on Tuesday accused the treasury of attempting to usurp President Cyril Ramaphosa’s powers. (Photo by Jack Taylor/Getty Images)
A preliminary report by public protector Kholeka Gcaleka has cleared President Cyril Ramaphosa of any wrongdoing with regard to the theft of R8 million in US dollars from his Phala Phala farm in Limpopo during February 2020.
The public protector found that the then head of the South African Police Service (SAPS) presidential protection service (PPS), General Wally Rhoode, and other members “acted improperly” in investigating the crime.
In the report — sent to implicated and affected persons for comment on Friday — Gcaleka found Rhoode and other members also “neglected to ensure that a case docket was opened”.
The investigation by Rhoode and Sergeant Hlulani Rekhoto into the case of housebreaking with the intent to steal and theft was “inconsistent with the SAPS Act”.
The report found the allegation that the president had violated the Executive Ethics Code and that there was a conflict of interest between his business interests and his constitutional obligations “is not substantiated.”
The public protector’s investigators could not find evidence showing that Ramaphosa was “actively involved in the day-to-day operations of Ntaba Nyoni or Phala Phala farm”.
“Therefore, the evidence before the public protector does not support the allegation that the president’s financial interests in game and cattle farming at Phala Phala farm exposes him to any situation involving the risk of a conflict between his official responsibilities and his private interests.”
Turning to the allegation that Ramaphosa was undertaking paid work while in office, the report found that there was no evidence to support this.
“The public protector finds that to have a financial interest in a business is distinguishable from working, being employed and receiving remuneration for contributing to the operations of the business.”
In light of this, the public protector found there was no basis upon which to conclude that Ramaphosa had contravened the ethics code.
Ramaphosa also played “no role” in the sale of buffalo to Sudanese billionaire Mustafa Mohamed Ibrahim Hazim for $580 000 (based on the exchange rate at the time) on 26 December 2019, according to the report.
Gcaleka found Ramaphosa did not fail to report the burglary as alleged by former State Security Agency boss Arthur Fraser in his affidavit to the police when he laid charges against Ramaphosa in June 2022.
“The evidence placed before the public protector neither supports the allegation that the president failed to report the crime of housebreaking with the intent to steal and theft of cash in foreign currency at his residence in Phala Phala farm, nor does it support the allegation of abuse of power in utilising state resources by causing the PPS to be deployed to Phala Phala farm and to investigate the crime of housebreaking with the intent to steal and theft at Phala Phala farm,” the report said.
Evidence showed that Ramaphosa had reported the security breach to Rhoode on 10 February 2020 and the theft of the money on 2 March 2020, when he became aware of it.
Rhoode confirmed that Ramaphosa reported the matter to him, without giving him specific instructions on how to deal with it.
Gcaleka found that there was no evidence that the president abused his power in using state resources to deploy the presidential protection unit to guard the farm and to investigate the burglary. Thus there is no substance to the complaint that he violated section 2 of the Executive Ethics Code.
It then follows that his conduct cannot be regarded as improper in terms of section 182(1) of the Constitution or an abuse of power as contemplated in section 6(4)(a)(ii) of the Public Protector Act.
The public protector said the allegation that members of the police attached to the presidential protection unit acted improperly by investigating the burglary could not be substantiated.
But the report faults Rhoode for proceeding with an investigation without properly reporting the crime to his commanding officer.
“Instead, Gen Rhoode alleges that he reported the crime to [Lieutenant] Gen [Sindile] Mfazi, the then national head of SAPS Detection Service. The public protector was not provided with any proof by Gen Rhoode to support the assertion that he reported the matter to Gen Mfazi, who has since passed away.”
No case docket was opened, so an official investigation could not be conducted.
The evidence suggested that Rhoode assembled his own investigation team, including Rekhoto, and subsequently carried out “an unofficial criminal investigation”. This included interviewing witnesses and suspects, doing surveillance and travelling to Cape Town on a hunt for further suspects.
This undermined Rhoode’s contention that he was only carrying out a preliminary investigation into the security breach at the farm.
“The report compiled by Rekhoto in this regard, indicates that the investigation focused on the crime of housebreaking with the intent to steal and theft, rather than the threat to the president’s safety.”
Doing so without a registered docket was a direct contravention of section 13(1),(2) and (3) of the SAPS Act, Regulation 5(3) of the SAPS Discipline Regulations.
This amounted to maladministration and further put them in breach of section 182 of the Constitution. As remedial action, the report recommends that the minister of police take note of this breach and gives the national police commissioner 60 days to take appropriate action against Rhoode and Rekhoto.
The minister and the commissioner are given 90 days from receiving the report to develop a directive on dealing with crimes reported directly to them by VIPs under their protection.
No action is recommended against Ramaphosa.
The presidency on Saturday confirmed receipt of the preliminary report.
“As stated before, we reiterate that the president did not participate in any wrongdoing, nor did he violate the oath of office,” it said.
“Instead, the president was a victim of a crime that he duly reported to the relevant authorities.”
In detailing the public protector’s investigation into the four complaints received regarding the Phala Phala burglary, the report records reluctance on the part of both Fraser and Ramaphosa to cooperate.
Fraser was asked to provide the sources of the information he gave to the police, to spare the public protector having to rely on hearsay evidence, but he refused.
“Mr Fraser was not at liberty to indicate to the investigating team the sources of his information as contained in his affidavit.”
This meant the public protector could not establish how he obtained the information regarding the burglary at Phala Phala, the theft of forex and an intelligence report from the Namibian police. The question of whether he did so lawfully was left open, possibly for the courts to decide, the report notes.
The public protector interviewed Fraser in September last year.
He provided little further information, saying there was “already enough in the public domain”, but alleged that Ramaphosa was lying about the sum stolen from the farm when he put it at $580 000, because the value of the cars and other items the suspects bought after the theft totaled millions of rands.
Ramaphosa contended that the complaints were politically motivated and that the public protector had failed to provide reasons why she would proceed despite the fact her mandate is restricted to investigating events no older than two years.
His lawyers suggested that the fact the complaints came just six months before the ANC’s elective conference showed that the complaint was “aimed at achieving partisan political outcomes”.
Therefore, they said, there was nothing that warranted her entertaining the complaint.
Ramaphosa also said the complaint could not be investigated on the basis of Fraser’s hearsay information. He rejected Fraser’s allegation that he sought to buy the silence of the suspected burglars as “pure fabrication”.
This echoes Ramaphosa’s submission in his court application to have the Ngcobo report set aside, that Rhoode’s allegations do not meet the test for admissibility of evidence.
The Ngcobo report, which recommended that Ramaphosa face impeachment over the scandal, said parts of the president’s account of the burglary, and events prior and post, were implausible.
The authors questioned whether the stolen forex was the proceeds of a livestock sale, given that two years later the buyer had not collected what he paid for.
Here Ramaphosa reiterated a proper invoice was not made out and the animals not collected because the burglary interrupted administrative processes that are part of the cross-border sale of cattle.
Regarding his failure to declare his share-holding to the farm to parliament in his annual declaration of interests, he said he did so until 2018 but that he was no longer required to do so because he became president in that year.