Phala Phala probe takes centre stage in Kholeka Gcaleka's PP job interview

Deputy public protector Kholeka Gcaleka defended her report which absolved President Cyril Ramaphosa of any wrongdoing in the Phala Phala saga. 

The report and Gcaleka’s investigation methods took centre stage in parliament on Thursday when she was interviewed by the multiparty ad hoc committee tasked with recruiting candidates to be the next public protector. 

Gcaleka’s exoneration of Ramaphosa was roundly criticised when the report was published in June.

She has been acting in place of suspended public protector Busisiwe Mkhwebane since June 2022 and has signed 107 reports during her acting stint, including during the time in 2021 when Mkhwebane was on an 11-week sabbatical. 

She told MPs that only three of those reports had been taken on legal review, and none of the cases had been finalised. 

EFF MP Omphile Maotwe was the first to put the acting public protector through her paces about the matter, including questioning her ethics. 

She asked whether Gcaleka still stood by her finding considering this week’s Reserve Bank announcement that the sale of the Phala Phala buffaloes was not a “perfected transaction”. The public protector report had suggested that the cash was from “a private cash transaction”, she said. 

“The report by the Reserve Bank is that there was no concluded sale between the buyer and the seller,” responded Gcaleka.

The public protector did not investigate the sale because the office does not have the power to do so.

“It is a private matter that doesn’t fall within the ambit of the public protector. Our role and mandate are to investigate state affairs,” she said. 

The public protector did not confirm there was a legal sale that took place, but dealt only with issues that involved public administration and which were also regulated in terms of executive ethics and not the sale, or to confirm whether there was a sale, perfected or not, said Gcaleka. 

Maotwe took her on over the termination of funds for suspended public protector Busisiwe Mkhwebane’s lawyers in the section 194 inquiry in March, questioning whether that was ethical conduct from her side. 

“Of course, yes, it is in line with the constitution,” responded Gcaleka. 

She said she has a duty as per the constitution to exercise public power in a manner that is economical, efficient and effective. 

“It is in line with my roles and responsibilities as an accounting authority of the public protector where I have oversight on governance and have to act in the best interest of the institution in line of what is budgeted for and what the institution can afford.” 

On March 1, Gcaleka wrote to the inquiry saying her office would not be able to fund Mkhwebane’s defence against her impeachment beyond March 31 as its funds had dried up. It was later announced, in May, that the National Treasury had given the go-ahead to use surplus funds of about R4m that were approved for the 2021/2022 financial year. 

DA MP Werner Horn asked how Gcaleka did not find a potential risk of conflict of interest and questioned her understanding of Section 96 of the constitution, which bars members of the executive from undertaking paid work. 

“The purpose is to ensure the duties that the executive undertakes become the primary duty and that it is not overweighted by the secondary duty, which is the private interest, and, further, that there is no risk of a conflict between the primary duty and the personal interest.”

Horn charged that, in her report, Gcaleka found that the financial interest did not distract the president unduly from his primary responsibility. 

“Not at all, we discussed the issue of the conflict of interest in the Phala Phala report. Primarily, what we need to look at, and which we have interacted with, and which has been confirmed by the Constitutional Court [in another case] is whether there is a real risk. 

“There mustn’t just be a suspicion, or a far-fetched risk or any other potential which is not related, but whether there is a real risk of a conflict of interest in a particular matter, and that we have interacted with it in our report.” 

ANC MP Richard Dyantyi cited retired Constitutional Court judge Chris Jafta who spoke about an open and inquiring mind in one of his judgments when he said (an investigator) needs to be open to all possibilities — that you must have a mind that is not unduly suspicious [but] at the same time a mind that is not unduly believing. 

“Place that in the Phala Phala investigation — did it materialise?” asked Dyantyi. 

Gcaleka said it did and that when she took over, she allowed investigators to do their work. 

“In line with the Public Protector Act, I took the necessary steps to make sure there was independence and impartiality, and the matter was dealt with without any prejudice to any party.” 

She said there had been only one investigator looking into the mater, and that she strengthened the investigation by including a senior investigator and ensured an executive manager responsible for the branch had oversight and that the COO had direct oversight of the investigation. 

“Not at any point had I gone down to find out what was happening in the matter. It was very critical for us because we had to build trust as an institution, and we had to stay true to the independence of investigations.” 

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