NATASHA MARRIAN: Why parties are targeting the public protector

The office of the public protector is coming under increasing pressure over the ethics investigation into President Cyril Ramaphosa around the Phala Phala saga.

Opposition parties will today march to the office of the public protector and hold a picket to try to force acting public protector Kholeka Gcaleka to release her report on Ramaphosa’s conduct in connection with the theft of foreign currency at his Phala Phala game farm.

There is a sinister element to the pressure being placed on Gcaleka. The African Transformation Movement (ATM) — effectively a front for the radical economic transformation (RET) faction of the ANC — is driving the push, along with the EFF. The ATM and EFF will be joined in the picket by COPE, the IFP, the PAC, the UDM and the ACDP.

The ATM and EFF have demanded that Gcaleka release Ramaphosa’s response to questions from the office’s investigators, before any findings have been made or before the investigation is finalised.

This is a highly unusual and irregular demand — so much so that Gcaleka issued a statement in July expressing concern about potential interference in her work.

“The [public protector] views the actions of those exerting pressure on the institution to publish the evidence in question, while the investigation is under way, as constituting the interference contemplated in the constitution and calls upon them to desist from such conduct,” she said.

“The institution would like to draw the attention of the public to section 7(2) of the Public Protector Act 23 of 1994 which provides that ‘no person shall disclose to any other person the contents of any document in the possession of a member of the office of the public protector or the record of any evidence given before the public protector [or] a deputy public protector … during an investigation’.”

Still, the opposition parties have persisted. The picket on Friday is only the second time there is a protest against the public protector at her offices by political parties represented in parliament. The first protest was by Andile Mngxitama’s Black First Land First movement about the public protector’s investigation into state capture (which culminated in the commission of inquiry into state capture chaired by chief justice Raymond Zondo). 

Now opposition parties, led by the ATM, are demanding that Gcaleka release the findings of her investigation, arguing that because the complaint was lodged in terms of the Executive Members’ Ethics Act (EMEA), the investigation — according to the act — should have been finalised in 30 days. The complaint was laid by the ATM in June.

However, the act makes for provision for instances where cases cannot be finalised within this time period. “If the public protector reports at the end of the period referred to in subsection (2) that the investigation has not yet been completed, the public protector must submit another report when the investigation has been completed,” the EMEA says. 

In July, Gcaleka explained: “The [public protector] never completes EMEA investigations within the prescribed 30-day period due to the complexity of such matters, among other reasons. The institution currently has, in its caseload, several active EMEA investigations, some of which date back to 2020.”

For instance, former public protector Thuli Madonsela’s investigation into Nkandla took two years to complete. Suspended public protector Busisiwe Mkhwebane’s investigation into Ramaphosa’s 2017 ANC election campaign funding took seven months to complete. 

While in the past there has been tension between the office of the public protector and the executive — under former president Jacob Zuma in particular — opposition parties are entering dangerous terrain.

They are aware of the complexity of the investigations and claim to be in the dark about why the investigation is taking so long — yet the public protector has written to the speaker of the National Assembly explaining that the time period has lapsed and that her office has not yet concluded its investigation. 

Opposition parties know this but are persisting. Why? They are exerting pressure on Gcaleka with a specific aim — they are pushing for the report to be finalised before the ANC’s elective conference in December when Ramaphosa is widely expected to be re-elected as party president.

But this is also clearly a move to intimidate Gcaleka — and set the stage for a pushback against her should her investigation fail to find any wrongdoing against the president. 

The office of the public protector over the past decade has been used for both good and for ill (under its suspended incumbent), but it is an indispensable and necessary safeguard against the profligacy of SA politicians.

Opposition parties should tread carefully in the momentum they are seeking to build against the public protector. It could further damage an institution already hobbled by the very grouping for which the ATM acts: the weak but desperate RET brigade.