Thuli Madonsela questions Phala Phala report

Former public protector Thuli Madonsela has sparked debate after questioning the section 89 independent panel report looking into the theft at Phala Phala farm.

The panel, headed by retired chief justice Sandile Ngcobo, last week found prima facie evidence against President Cyril Ramaphosa concerning the robbery at his game farm.

It said in light of the information before it, “we conclude that this information discloses, prima facie, that the president may have committed a serious violation of sections 96(2)(a) [of the constitution] and a serious violation of section 34(1) of the Prevention and Combating of Corrupt Activities Act [Preccaa], a serious misconduct in that the president violated section 96(2)(b) of the constitution by acting in a way that is inconsistent with his office, and a serious misconduct in that the president violated section 96(2)(b) by exposing himself to a situation involving a conflict between his official responsibilities and his private business”.

It also found no docket was opened into the alleged burglary and Ramaphosa may have committed a serious violation of the law and serious misconduct in terms of the constitution. 

Madonsela said section 34(1) of the Preccaa imposes a duty to report corrupt activities and not theft of money at your own residence.

She told Newzroom Afrika: “It’s very clear this is an act of corruption. It’s not an act on theft. Therefore, you have to read this act and interpret it in its entirety. You have to interpret the act in terms of the scheme in its entirety that it provides for combating corruption and related offences such as fraud,” said Madonsela. 

She said Ngcobo failed the country by applying a law that does not apply in this particular case. 

“The president is being accused of failing to report the loss of his own money at his own private property. Nobody has accused him of failing to report money that had been obtained corruptly,” she said.

Amid a backlash online over her statement, Madonsela called on those who disagreed to educate her. 

“Educate me please. Does the ‘duty to report corrupt transactions’ in section 34(1) of Preccaa apply to all R100,000 thefts of money unrelated to suspected corruption and is it borne beyond list in section34(4)? Does ‘sufficient evidence’ have the same meaning as ‘sufficient information’ in section 89 rules?” she asked.

“While you educate me, also kindly explain if police officials who are part of the VIP or presidential protection units are not police officials and therefore do not qualify as ‘any police official’ the duty bearers under section 34(1) of Preccaa must report corrupt transactions to.

“Is this a duty to report a suspected corrupt transaction or is this a duty to open a case regarding a corrupt transaction? Please educate me.”

Madonsela maintained the section 89 independent panel misdirected itself by saying the information before it disclosed a possible violation of section 34(1) of Preccaa.

Disputing Madonsela’s views, advocate Dali Mpofu said Preccaa makes it a crime to fail to report any theft of an amount above R100,000. 

“The agreed amount was above R100,000. Of course it is possible there’s a good explanation, as you postulate. But that must be tested in court. Prima facie simply means is there a case to answer?” said Mpofu.

“Just to be clear, the independent panel didn’t find the president guilty of an impeachable offence but only that he has a case to answer. He may be found not guilty. So the only question is whether the ANC will abuse its majority to avoid his accountability,” he said. 

Here is a snapshot of what others had to say: 

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