The African Transformation Movement rejects the Phala Phala findings by acting Public Protector

30 June 2023

The African Transformation Movement (ATM) categorically rejects the legally unsound report just issued by the acting Public Protector. This report, which has been presented to the public, will not withstand even the slightest legal scrutiny It is fundamentally flawed from its inception to its conclusion.

Although the Public Protector has chosen to point at everyone except the President, we assert that the President is unequivocally guilty of a series of crimes including the violation of Section 34(1) of the Prevention and Combating of Corrupt Activities Act (PRECCA) which states the following:

34 Duty to report cot-rupt transactions.

(I) Any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed-

(a) an offence under Part I, 2, 3 or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2; or

(b) the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of RI 00 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to the police official in the Directorate for Priority Crime Investigation referred to In section 17C of the South African Police Service Act, 1995, (Act 68 of 1995)

According to Section 34(1 Of PRECCA, (as amended by the South African Police Service Amendment Act Of 201 2), the President ought to have reported the theft in his Phala-PhaIa farm to a police omcial Within the Directorate for Priority Crime Investigation.

While the President maintains that he reported the matter to General Rhoode, it is important to note that neither General Rhoode nor Lieutenant General Mfazi are police officials within the Directorate for Priority Crime Investigation. How the Acting Public Protector missed this, remains a mystery.

The President also violated section 96(2)(a) and 96(2)(b) of the constitution which states the following:

96(2) Members ofthe Cabinet and Deputy Ministers may not:

(a) Undertake paid work.

(b) Act in a way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.

There is no denying that the President violated this provision of the Constitution, this by his owm admission at an ANC gathering in Limpopo, when he told delegates that "I'm a farmer, I am in the cattle business and the game business, I buy and I sell animals.... This that is being reported was a clear business transaction of selling animals."

This was an admission of a crime, the President confirmed that he was actively running a business while being President of the Republic, in direct violation of the constitution. The President ought to have arrested there and then.

Although The Public Protector suggested that the President was not engaged in paid work, South Africans would also be aware that the President is the sole member of the of Ntaba Nyoni Estates CC in which the Phala- Phala farm is the operating entity of.

According to the Close Cooperation Act, the President as the sole member of the Ntaba Nyoni Estates CC must have been involved in the day-to-day operations of his farm. We should remember over and above his admission at the ANC gathering in Limpopo as stated above, the President was also the one that communicated with buyers, even going as far as to direct which animals should be taken and which should be left. This is clear proof that the President was consciously engaged in the operations in Phala-Phala. We do not know how the Acting Public Protector missed this.

Furthermore, the President also violated section of the constitution which provides that Members of the Cabinet may not act in a way that is inconsistent with their office. Now, when the President gave an unlawful instruction to General Wally Rhoode, to investigate the burglary in his private farm rather than to report the matter to relevant authorities, the President was acting in a way that was inconsistent with his office, by abusing his proximity to state resources to run a private investigation of the burglary Additionally, the Acting Public Protector also cleared the president on the charge that the President violated clause 2.3(f) of the Executive Ethics Code. It's worth noting that the violation of section and section which we highlighted above, cannot be divorced from the violation of clause of the Executive Ethics Code which the Acting Public Protector surprisingly clears the president of violating. The question of whether the President engaged in paid work, is a question fact. And the President already admitted to this. How the acting Public Protector cleared the President on this is unclear.

On the issue of the large sums of foreign currency in the President's possession, South Africans will remember that earlier this year, SARS confirmed that they had no record of the Phala-Phala dollars being declared with the revenue services. This meant, the President transacted large sums of foreign currency without declaring those large sums of money with the South African Revenue Services. A clear violation of the SARS excess currency policy and the Financial Intelligence Centre, which caps the amount of cash one could keep with them at R25 000. And according to the Reserve Bank, a cash transaction that involves such large sums of money, has to be deposited within 30 days, the President did no deposit the cash transaction within 30 days, further violating the law.

Additionally, whenever large sums of foreign currency are brought into the country, they have to be declared to the SARB as per the Excess Currency Policy and the Exchange Controls Regulations. However, a letter from the Governor of the South African Reserve Bank to the Presidents legal team requesting details of the foreign currency used in this ‘sale' was further proof that the Reserve Bank had no idea the President had foreign currency in his farm.

Finally, The African Movement firmly believes in upholding the principles of accountability, and the rule of law. The acting Public Protector's report, however, has demonstrated a clear departure from these principles. This report issued by the Acting Public Protector undermines the intelligence of South Africans. South Africans are fully aware of the crimes committed by the President in Phala-Phala despite the Acting Public Protector bending over backwards to clear the President.

This report by the Acting Public Protector contributes to the erosion of our democracy and a growing lack of trust on chapter 9 institutions who are tasked with holding this constitutional democracy together.

Hence, the African Transformation Movement has taken a decision of approaching the High Court with the aim of reviewing this report by the Acting Public Protector and have it set aside.

The President has to account for his crimes in Phala-Phala and we will not rest until he does.

Issued by Zama Ntshona, National Spokesperson, ATM, 30 June 2023