If the past is anything to go by, when a president of SA is under scrutiny by the office of the public protector, the fire pool in the Nkandla matter may be the metaphor for Phala Phala US dollars. As such the findings of the acting public protector exonerating President Cyril Ramaphosa of any wrongdoing may just be a slippery slope to his undoing. Along the path in these high-stake cases, there are sacrificial lambs — a perfect mattress for the king to lie on according to African burial tradition for royalty. The difference between Nkandla and Phala Phala is that the acting public protector has changed roles. And in doing the bidding, she replaces then-minister of police Nkosinathi Nhleko in an Oscar-failed movie where he tried to prove to then public protector Thuli Madonsela that the swimming pool was a fire pool meant to extinguish fire on the thatched roof.
The seminal judgment delivered by then chief justice Mogoeng Mogoeng is a worthy point of reference for democratic order. The judgment pierced the ears of the deaf, the eyes of the blind and the tongue of the dumb and South Africa at large. It sent the clearest message about the infinite power clothing a president of SA. It is this enormous power that the acting public protector failed to read into the power of the Public Protector Act 23 of 1994. She was grossly incompetent to not investigate the dollars hidden at Phala Phala. Suggesting the matter is private is gross negligence of the powers enjoining her responsibility with state institutions. It represents official dishonesty. Her Act 23 of 1994 will find her guilty of this as seen in section 6 (4). There is absolutely nothing private in the affairs of the South African Reserve Bank, nor is there any matter private in the affairs of the South African Revenue Services as they relate to a constitutional being — the president of the republic.
What was contained in the mattress is 58 times above the allowable limit of $10,000 that another constitutional entity, the Reserve Bank, prohibits.
She only needs only to read Mogoeng’s judgment of Nkandla to disabuse herself of this notion that the dollar matter is private. For ease of reference the excerpts that refer to constitutional being are referenced. For purposes of foregrounding the arguments, I refer to this judgment where he provided a definition of the president and the attendant powers bestowed on that office.
Twice in the 53 paged judgment the chief justice referred to the president as the constitutional being: “His is indeed the highest calling to the highest office in the land. Only upon him has the constitutional obligation to uphold, defend and respect the constitution as the supreme law of the republic been expressly imposed. The promotion of national unity and reconciliation falls squarely on his shoulders. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project ... That this court enjoys the exclusive jurisdiction to decide a failure by the president to fulfil his constitutional obligations ought not to be surprising, considering the magnitude and vital importance of his responsibilities.”
So it’s a fire pool déjà vu in the mattress-dollar matter, against which the public protector will be taken not only for judicial neglect of her powers but to parliamentary inquest for fitness to hold office. In short order we are likely to have two public protectors in the dock being scrutinised on the subject of fitness to hold office. The circus is about to begin.
For the public protector to glibly dismiss the evidence, was to reduce the constitutional being defined by Mogoeng to a disused mattress itself. What was contained in the mattress is 58 times above the allowable limit of $10,000 that another constitutional entity, the Reserve Bank, prohibits. So to say a constitutional being alleged to have violated an act of another constitutional entity is a private matter, and therefore she could not investigate it, violates the Public Protector’s Act by the public protector. There is no professional sin higher than that, and this analogy is in Mogoeng’s judgment on the Nkandla matter.
Sections 6 and 7 of the Public Protector’s Act are clear. On those grounds the public protector has no discretion but to investigate the alleged violation. There is nothing private by a public officer. To this end the act empowers the public protector to summon the Reserve Bank governor, the commissioner of Sars and the director-general of home affairs to either answer or investigate on her behalf both the existence of alleged undeclared dollars and their entry and movement into the country.
The public protector chose to ignore her act and all her fundamental powers for executing her functions. Instead, she chose a flimsy attire adequate to use Gen Wally Rhoode as the perfect mattress for a royal burial.
Dr Pali Lehohla is the director of the Economic Modelling Academy, a Professor of Practice at the University of Johannesburg, a Research Associate at Oxford University, a board member of Institute for Economic Justice at Wits and a distinguished Alumni of the University of Ghana. He is the former statistician-general of SA.
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