Acting public protector, advocate Kholeka Gcaleka, has released her final report into whether President Cyril Ramaphosa broke any rules relating to the Phala Phala matter. She has cleared him of breaching the Executive Members Ethics Code, the rule book governing how the president and his ministers conduct themselves while in office.
One of the complaints related to whether Ramaphosa did any paid work while serving as president. She determined that he was not by choosing a narrow, unrealistic frame to reach that conclusion. Essentially she tried to determine if he was involved in day-to-day operations and getting paid for it.
This frame is useful when investigating a mid-level public servant who has a side-hustle, where they are employed by someone else. She did not look at an instance where such a public servant owned a business where the ultimate beneficial ownership accrued to them. An investigation with an open mind should consider all possibilities first before zeroing in on where the evidence is leading.
Ramaphosa is a wealthy man with multiple business interests across many industries. It is common for business people of his level to not be involved in the day-to-day operations. They are able to do this because they have qualified employees, such as Ramaphosa appears to have at his game farm.
Such businesspeople do not get paid a salary but benefit from the profits and wealth that accrue to family wealth structures such as trusts.
Despite her assertion to the contrary, Ramaphosa’s own evidence and Phala Phala lodge manager, Dumisani Ndlovu’s, Ramaphosa played an active role in his business in a way consistent with the role wealthy owners of companies play. It is less important whether he uses state resources, since he most likely does not need to. Instead, it is more important to assess whether he uses his position as president to realise business opportunities for his companies, and therefore himself and his family.
In paragraph 6.1.40 of the report, Ramaphosa freely admits that he advised his farm manager that there were potential buyers of the buffalo from the Middle East and here in Africa. From this, it is clear that it was not the farm manager but Ramaphosa who brought in the sales opportunity. The public protector does not ask how he came to know of this and why the farm was not hunting for buyers on its own.
The facts established in the report raise many questions about the risk of or conflict, especially in the specific circumstances of the case. To believe Ramaphosa’s version, one has to believe that a series of coincidences occurred.
He was also not asked whether he has an agent who markets the buffalo, in which case that agent should have reported to the farm manager, while Ramaphosa is busy doing the work of the South African people.
The fundamental ethical risk with presidents and ministers having any direct involvement with profit-making, is that they are privy to a lot of strategic but confidential information that enables them to identify opportunities and risks long before anyone else. This means they are able to inform their business associates, family or friends of what government is about to do or what is about to take place, and they take active steps to either benefit or avoid loss.
For example, a cabinet decision may affect the share prices of certain companies. If that decision is favourable to those companies, they may buy or increase their shareholding in those companies and therefore become wealthier. They may also sell their shares ahead of the public announcement to preserve their wealth if such a decision is detrimental. This is called insider trading and is a crime in many countries.
The facts established in the report raise many questions about the risk of or conflict, especially in the specific circumstances of the case. To believe Ramaphosa’s version, one has to believe that a series of coincidences occurred.
Ramaphosa personally knew of potential buyers from the Middle East or somewhere on the continent. Since the public protector makes no effort to establish whether one of these was the Mustafa Hazim who allegedly bought the buffalo, we are unable to work out the extent of Ramaphosa’s involvement.
Either way it is clear that he is acting as a salesman, in line with his declaration at an ANC meeting in Limpopo after the scandal broke.
By the time Hazim showed up at Phala Phala, he already knew that it had buffalo for sale. We do not know where he heard this information or why he felt sufficiently confident to show up at Phala Phala on Christmas Day of all days, and with the money already in his car. Since this is never canvassed by the public protector, it is reasonable to entertain the possibility that Hazim and Ramaphosa know each other and discussed the transaction.
According to Ndlovu, his job description as lodge manager excludes the sale of buffalo. Nonetheless Ndlovu felt sufficiently confident to conduct the sale without consulting his boss, a Mr Von Wielligh, who knows better about buffalo sales.
Unless the game industry has neither operating hours nor public holidays, the normal expectation would be for Hazim to be told the farm was closed for business on that day, but he was welcomed nonetheless. Everything that proceeds to happen needed further probing, such as why Ndlovu did not phone his boss when he conducted an R8m sale.
This is inconsistent with someone who is getting involved in a major transaction on a subject he is not familiar with. It is more consistent with someone who had received prior instructions.
On his version, as soon as he locked up the money, Ndlovu simply went back to join his family for Christmas lunch! The farm manager was not informed.
We are not given an insight into how much negotiation over the price or quality of the buffalo took place. It appears that Hazim was dying to buy buffalo, any buffalo, and on that day. This is implausible behaviour from a serious buyer.
In another coincidence, Ramaphosa showed up at his farm the next day, whereupon he was informed of the $580,000 sale and the cash on the premises. Having taken the trouble to visit Phala Phala, the president left the next day for Cape Town. It does not stretch the imagination to ask if Ramaphosa came there specifically for or to discuss the money. He did not have a meeting and arrived so late in the day that relaxation was clearly not the purpose either.
Paragraph 6.1.95 is even more mind-boggling in light of the public protector’s conclusion that Ramaphosa’s version of not being involved in operational matters must be accepted. In that paragraph, Ndlovu says Ramaphosa told him to keep the money until he returns from holiday so that it can be processed and banked properly.
This is strange. Such a process should not require his involvement since he is not involved in operational and administrative matters. The public protector has allowed Ramaphosa to have his cake and eat it. He claims to not be involved in the running of the operation, but he is identifying or liaising with potential buyers and then issuing instructions that nothing is to be done to finalise the transaction until he gets back from holiday.
Most baffling of all is that the transaction only exists on paper, for Hazim never collected the buffalo at all. He also signed no contract of any sort. It appears that having travelled all the way to find buffalo, and then paying in hard cash at the drop of a hat, he promptly lost interest in the animals and his money.
It takes extraordinary naivete to believe such, but the public protector does. I am not suggesting that she makes conclusions behind which there is no proof, but since she never asks the probing questions that needed to be asked, we are left none the wiser.
This case cries out for a criminal investigation, but to the extent that one will take place, it is extremely unlikely anyone will be held accountable. Since the mid-2000s ANC law enforcement agencies are for those who have no political clout, or are unconnected to political power.
The political parties that raised the complaint with the public protector have indicated they will approach the courts to review and set aside the report. Even if that were to succeed, it would simply take us back to square one, where a thorough investigation must take place.
None will take place. The ANC controls parliament and the police. The party has stated it has no interest in an adverse finding against its president. There will be no meaningful criminal investigation. This matter will drag on for years while it’s business as usual.
This is not just the price of long incumbency of the ANC, but a political system that is no longer sufficiently robust to hold those in power accountable. This means political reforms to radically improve government accountability and transparency are a necessity, not a nice to have.
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