Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 July 2023

Digging into acting Public Protector’s perplexing lack of curiosity about pivotal Phala Phala facts

Anyone who has read acting Public Protector Kholeka Gcaleka’s entire 249-page report on Phala Phala would be hard-pressed to still believe President Cyril Ramaphosa’s version of how hundreds of thousands of dollars landed up in a couch at his farm.

While acting Public Protector Kholeka Gcaleka’s report into the Phala Phala scandal avoids the kind of spectacular missteps for which suspended Public Protector Busisiwe Mkhwebane became famous, it does no better at uncovering the truth than the many reports of the suspended Public Protector which were reviewed and set aside by our courts.

The problem in this instance is not so much the law as the facts.

While Ms Gcaleka’s interpretation of the relevant provisions of the Constitution and the Executive Members Ethics Code on conflicts of interest and on receiving remuneration for any other work or service is, at best, questionable, these are only a side issue that does not go to the heart of the scandal.

What really taints the report is the acting Public Protector’s perplexing lack of curiosity about pivotal factual questions at the heart of the scandal.

(As an aside, while her decision not to make findings on whether certain criminal offences were committed, but instead to pass the buck on these questions to the Hawks, the NPA and the South African Reserve Bank respectively may reinforce perceptions that the report is a whitewash, this is actually the correct approach to have taken in terms of our law.)

This acting Public Protector’s aggressive lack of curiosity about pivotal matters allowed her to sidestep the set of questions at the heart of the Phala Phala scandal. These include the following: where the more than $500,000 came from; what the money was intended for; and why it was stuffed under cushions in a sofa in Mr Ramaphosa’s house?

I say these remain the main questions raised by the scandal because, as Songezo Zibi argued in a column in City Press last week, the money could not possibly have been from the sale of buffalo, and no sale of buffalo could have been intended.

The great benefit of this report is that it gathers the version of the story presented by Mr Ramaphosa and others involved in the matter in one place, and — unintentionally perhaps — reveals the inconsistencies, contradictions and general implausibility of the president’s story, a story that has more holes in it than a Swiss cheese the size of Mount Everest.

How then did the acting Public Protector reach the conclusion that “the evidence and information before the Public Protector indicate that the US dollars stolen at Phala Phala farm on or about 9 February 2020 emanate from a private cash transaction. Mr Mustafa Mohamed Ibrahim Hazim (Mr Hazim) a citizen of Sudan, arrived in the country on 23 December 2019 and thereafter purchased buffalo at Phala Phala farm on 25 December 2019”?

On a purely technical level, this conclusion may not be wrong. This is so because no evidence has yet emerged of what the actual source of this money was or how the money landed up at Phala Phala, and because the pivotal evidence before the Public Protector about the source of the money came from President Ramaphosa and “his” supporting witnesses, who — as the report pointed out — largely “corroborated” the President’s story.

But it was Ms Gcaleka’s failure adequately to probe important aspects of the evidence provided by Ramaphosa and the other witnesses that left the story of the sale of buffaloes more or less undisturbed. It is impossible to discuss all aspects of the witness evidence that called for further probing, but I will deal with what I believe are the main problems with how this aspect of the investigation was dealt with. To do so, I first need to relate the main aspects of the story about the sale of buffaloes as presented by Ramaphosa and other witnesses.

The story goes like this

The lodge manager at Phala Phala farm, Mr Dumisani Sylvester Ndlovu, received Mr Mohamed Ibrahim Hazim, the buyer of the buffaloes, at Phala Phala around lunchtime on 25 December 2019. Mr Ndlovu then showed him the buffaloes, Mr Hazim picked the ones he wanted, handed over $580,000 in cash to Mr Ndlovu along with his phone number, was given a receipt, and was told that the purchase could not be finalised before various other steps had been concluded. Mr Hazim did not sign any documents when he purchased the animals.

Mr Ndlovu placed the money in the walk-in safe on the farm, but before going on holiday a few days later, he moved the money to the couch in the main house before going on holiday a few days later, as other workers had access to the safe.

Mr Ramaphosa and the farm manager had previously decided that the buffaloes were substandard and were a drain on Phala Phala’s finances and “should be sold as a parcel, because this made better financial sense”. The president had previously advised the general manager at Phala Phala “that there were potential buyers of these buffalo from the Middle East and other African countries”, but had no knowledge of the sale until he arrived a day after the sale was concluded and was told about it.

He had also told the farm manager “that he should not worry too much about this as he had an investor that was going to facilitate a very lucrative deal with Phala Phala farm, which should ease the financial burden” on the farm.

Another curious detail: Mr Hazim entered the country through OR Tambo International Airport on 23 December 2019 at 11:05 and departed from the same airport three days later on 26 December 2019 at 17:00.

One would have to be extremely gullible to believe this version of the story. A good investigator might have started by probing Mr Ndlovu about aspects of his evidence that seemed implausible. Mr Ndlovu was the hospitality manager at Phala Phala. He welcomed guests, managed the housekeeping and kitchen staff, and bought the food and drinks.

Why was he available to receive an unannounced guest during Christmas lunch? Why was Mr Hazim — who it was claimed arrived out of the blue — allowed to enter the premises in the first place? Did President Ramaphosa alert anyone on the farm that Mr Hazim was on his way? Why would Mr Ndlovu take almost $600,000 from a stranger under the impression that he was selling buffaloes without being certain (according to his own evidence) which buffaloes were to be sold? Did he not phone somebody to check?

Who else had access to the safe, and why did Mr Ndlovu not merely collect their keys to make sure no one else had access to the safe? Why is he so sure that Mr Ramaphosa only arrived on the farm late the next day (maybe not incidentally, after Mr Hazim had left the country)?

Apparently, Mr Ndlovu was asked none of these questions. Instead, in a startling paragraph in the report, we are told that “Mr Ndlovu did not attend the physical interview with the Investigation Team as scheduled for 06 September 2022. He instead indicated that he would send his written affidavit to the Public Protector, which was received on 04 October 2022 from Haffegee Roskam Savage Attorneys.”

It is not explained why he refused to attend a personal interview and why the Public Protector did not insist that he do so. Neither do we know who paid Mr Ndlovu’s legal fees. Follow-up questions were sent to him, but pivotal questions were seemingly not posed. Was he ever asked whether Mr Ramaphosa or anyone else told him not to attend the interview or whether he had any telephonic or other discussions with Mr Ramaphosa or anyone else about his testimony?

Alleged sale

A good investigator would also have probed Mr Ramaphosa and others about other aspects of the so-called sale of the buffaloes. Had Mr Ramaphosa known Mr Hazim prior to the “sale”, or had he ever spoken to Mr Hazim, before or after the so-called sale? Had he had any dealings of a personal or any other kind with him? Did he know beforehand about Mr Hazim’s visit, and had he spoken to anyone on the farm to alert them about Mr Hazim’s visit? Was Mr Hazim one of the potential buyers from Africa and the Middle East that Mr Ramaphosa had told his farm manager about?

If Mr Ramaphosa only arrived on the farm late on the day of the 26th, what exactly was he doing on the 25thand earlier on the 26th and could he provide evidence to back this up? Had he either directly or indirectly through intermediaries communicated with any of the other witnesses about their evidence and if so, what did he say? How many buffaloes in how many transactions have been sold to walk-in buyers at Phala Phala, and what are the identities of these buyers and what are the details of each sale?

Mr Ramaphosa should also have been probed on whether he told the farm manager that he had an investor that was going to facilitate a very lucrative deal with Phala Phala farm, if so, who this investor was, what the lucrative deal entailed, whether the deal had come to fruition and if not, why not? Was the delivery by Mr Hazim of almost $600,000 to the farm part of this lucrative deal?

The acting Public Protector also does not explain in her report whether she requested Mr Hazim’s telephone number from Mr Ndlovu and whether she contacted him to solicit his version of events. Nor is there any indication that any attempt was made to find out more about Mr Hazim, how he had made his money, or whether he had any connections with South African companies or politicians, including Mr Ramaphosa.

While the report notes that the “jurisdiction of the Public Protector does not provide for powers and methods of collecting evidence from foreign sovereign states”, this did not prevent her from soliciting information from Mr Hazim himself, or use other methods to try and find out more about him.

No attempt was made to verify Mr Ramaphosa’s claim that he received no remuneration from the trust that owned Phala Phala farm of which he is a beneficiary, or to look into the finances of the trust to check whether the farm had ever before sold animals to strangers who rocked up on the farm out of the blue.

All this means that while the finding that “the evidence before the Public Protector does not support the allegation that the President undertakes paid work or receives remuneration from Phala Phala farm” may technically be correct, this may only be because the Public Protector failed to look for evidence that contradicted this conclusion.

The Public Protector also accepted the explanation provided by President Ramaphosa’s special envoy Mr Benjani Chauke and the head of the Presidential Protection Service, Major General Wally Rhoode, for the mysterious trip they took to Namibia, allegedly to meet with Namibian Police “to share operational information” about the suspects of the Phala Phala theft.

They claimed that Chauke was sent to Namibia to deliver a letter from President Ramaphosa to the president of Namibia, and that no meeting with Namibian Police ever took place. It was also suggested that General Rhoode went along to facilitate travel made difficult by the Covid-19 lockdown (the report is conveniently vague on this aspect).

But this story does not hold up under scrutiny. Why would the head of the PPS be instructed (allegedly by President Ramaphosa) to accompany Chauke, essentially to act as a travel agent or bodyguard, something that any number of more junior members of the SAPS could have done?

There is no indication in the report that Mr Ramaphosa was asked if he instructed Mr Rhoode to go along, and if so, why he issued this instruction. Neither Chauke nor Rhoode were probed on this aspect of their story to establish exactly what purpose General Rhoode served on this trip.

The fact that this was in breach of the rules regulating the rendering of PPS services to someone like Mr Chauke raises further questions about the veracity of the version provided by Rhoode and Chauke. The Public Protector nevertheless remained stoically incurious about the many odd aspects of this part of the story.

For what it is worth, I think there is a far more plausible explanation for the origins of the $580,000 stashed in a couch in Mr Ramaphosa’s house at Phala Phala.

In this version, Mr Hazim is the bag man sent to deliver the cash to Mr Ramaphosa. The cash might be a dirty money “donation” from foreign funders for Mr Ramaphosa’s re-election campaign for president of the ANC, a donation possibly given to secure influence over the President or part of a larger dirty money scheme of the kind so many ANC leaders (including Jacob Zuma) have been associated with over the years.

This is, of course, pure guesswork on my part. We may never know what really happened at Phala Phala and where the money came from. However, what must be clear from a close reading of the acting Public Protector’s report about the scandal is that the story of the sale of buffaloes is just that: a story.

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