July 20, 2024

Race For New PP, A Critical Analysis Of Why Ramaphosa Prefers Gcaleka

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Ramaphosa appears to have captured the law enforcement agencies as well.

FILE PHOTO: Acting Public Protector Kholeka Gcaleka is pictured during an inspection of the R31 road last week. PICTURE: Soraya Crowie

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Ramaphosa undoubtedly prefers Advocate Gcaleka to avoid accountability as well, writes MOLIFI TSHABALALA

At a media briefing on Saturday the 23rd of August, 2003, then National Director of Public Prosecutions (NDPP) Advocate Bulelani Ngcuka announced that the state had prima facie evidence of corruption and fraud against Jacob Zuma, then deputy president of both the African National Congress (ANC) and South Africa, but he had decided not to charge him. The case, he claimed, was unwinnable.

Yet Ngcuka decided to charge Zuma’s accomplices, Thales Group and its former executive director, as well as Schabir Shaik and several of his companies, including Kobifin and Nkobi Holdings, with the same counts of corruption and fraud. The state, however, later dropped the charges against the French arms manufacturer and its former executive director. Therefore, Shaik had become a sacrificial lamb.

Between October 1995 and September 2002, Shaik paid Zuma over R1 million, argued the National Prosecuting Authority (NPA), which acts on behalf of the state, during the Shaik trial. In return, the state argued, Zuma had undertaken to advance his former financial adviser’s business interests.

Zuma had also received R500 000 a year from Thales, alleges the state. Apart from advancing its business interests in South Africa, the state further alleges, he had undertaken to protect the multinational company from an investigation into its unlawful conduct.

During the period in which Zuma allegedly received sums of money from Shaik and Thales, he held three positions in government. Between 1994 and 1999, he served as a member of the executive committee (MEC) for economic affairs and tourism in KwaZulu-Natal. As the deputy president, he served as leader of government business.

Undoubtedly, he wielded a great deal of economic power to advance Shaik and Thales’ business interests. The same, however, cannot be said about his alleged undertaking to protect the latter from the investigation into its unlawful conduct, as he had not become a South African president. Only the president wields enormous constitutional power to protect himself and his clients from prosecutions.

In June 2005, Judge Hilary Squires found Zuma guilty of two counts of corruption and one of fraud and sentenced him to 15 years in prison. “Instead of just stabilising the situation and managing Zuma’s chaotic finances,” said the late judge, “Shaik then made it possible for Zuma to continue living beyond his means by the payments”.

The damning judgement and, of course, evidence that emerged during the Shaik trial had left the then South African president Thabo Mbeki with no choice but to fire Zuma as his deputy on 14 June 2005. Nearly a week later, Ngcuka’s successor, Vusimuzi ‘Vusi’ Pikoli, decided to charge him with counts of corruption, fraud and others. The matter, however, had taken different twists until a high court judge struck it off the roll.

Zuma and his supporters peddled a narrative to the effect that the charges had been politically concocted to prevent him from succeeding Mbeki as the president of both the ANC and South Africa. Meanwhile, Mbeki had been concerned that his struggle friend vied for the presidency “as a strategy to avoid prosecution,” wrote his biographer Mark Gevisser in Thabo Mbeki: The Dream Deferred.

At the watershed 52nd ANC National Conference, held in December 2007, Zuma defeated Mbeki for the ANC presidency. A few days later, the then-acting NDPP Mokotedi Mpshe (as Mbeki had suspended Pikoli and instituted an inquiry into his fitness to hold office) reinstated the charges against him, laying more credence to narrative, which had further gained traction following retired Pietermaritzburg High Court Judge Christopher ‘Chris’ Nicholson’s damning judgement in the long-running, multi-layered matter between Zuma and the state.

Mbeki and his cabinet had predisposed Mpshe to reinstate the charges, said Judge Nicholson, thereby triggering an intra-ANC factional coup, as the ANC recalled the former as its deployee in government. Incidentally, Kgalema Motlanthe, then ANC deputy president, had served as caretaker-president until the elections.

In January 2009, basing his decision on transcripts of intercepted conversations between Ngcuka and Leonard McCarthy, a former head of the NPA’s defunct Directorate of Special Operations (DSO), dubbed the ‘spy tapes,’ Mpshe dropped the charges against Zuma, claiming that it had become “neither possible nor desirable for the NPA to continue with the prosecution.” According to the tapes, the duo discussed the right time to reinstate the charges against Zuma – that is, whether prior to or post the 52nd National Conference.

Having taken the reins of state power from Motlanthe following the elections, Zuma implemented the strategy to avoid prosecution. He offered Pikoli a whopping R7.5 million to resign as the NDPP and replaced him with Menzi Simelane.

Prior to his appointment, Simelane served as director-general in the Justice Department. In this capacity, he had submitted evidence to and testified before the inquiry into Pikoli’s fitness to hold office on behalf of the government.

Frene Ginwala, who chaired the inquiry into Pikoli’s fitness to hold office, had criticised him for his both submission and testimony. “[M]any complaints were included that were far removed in fact and time from the reasons advanced in the [President’s] letter of suspension, as well as the terms of reference”. This, she said, showed his utter “disregard and lack of appreciation and respect for the import of an Enquiry established by the President.”

The damning criticism led to an investigation into his conduct by the Public Service Commission (PSC). In its report, the PSC recommend a disciplinary action against Simelane, but former justice minister Jeffrey ‘Jeff’ Radebe rejected its recommendation, thereby paving the way for Zuma to appoint him as the NDPP.

Setting aside his appointment, the Supreme Court of Appeal (SCA) said Radebe and Zuma “were too easily dismissive of” its recommendation, thanks to the Democrat Alliance (DA), which had taken it on a judicial review. The appellant court and the Constitutional Court (CC), which upheld the judgement, had given Zuma an opportunity to rectify his mistake, but he went for yet another compromised individual in Nomcobo Jiba, appointing her in an acting capacity.

In December 2007, Mpshe suspended Jiba – then serving as deputy NDPP – for her role in former state prosecutor Gerhard ‘Gerrie’ Nel’s arrest on concocted charges, including defeating the ends of justice and perjury, and instituted disciplinary charges against her for dishonesty, unprofessional conduct, and bringing the NPA into disrepute.

FILE PHOTO: Public Protector Busisiwe Mkhwebane shakes hands with President Jacob Zuma. PICTURE: @PresidencyZA

Jiba had a score to settle against Nel, whom she blamed for her husband Booker Nhantsi’s imprisonment for theft. Similar to Zuma’s multi-faceted matter, her disciplinary hearing had taken different twists until she had reached an outside settlement agreement with her employer.

Making her even more beholden to him, Zuma granted Nhantsi, who is also a lawyer by profession, a presidential pardon, thereby expunging his criminal record. It is thus no wonder that the NPA had joined forces with Zuma to oppose the DA’s relentless application to review and nullify Mpshe’s decision to drop the charges against him.

Ultimately, Zuma’s strategy to use the presidency to avoid prosecution has failed. He is set to stand trial on 16 counts of corruption, fraud, money laundering, and racketeering.

With Jiba and her successor, Shaun Abraham, at the helm of the NPA, and Berning Ntlemeza (whose appointment was also nullified by a court of law) that of the Directorate of Priority Crime Investigation (DPCI), dubbed the Hawks, Zuma had essentially ‘captured’ the country’s critical law enforcement agencies except the Public Protector (PP), a Chapter Nine Institution that supports constitutional democracy. Under its former head, Advocate Thulisile ‘Thuli’ Madonsela, the PP had become a thorn in his flesh. Hence, she had been called sorts of names, including a Central Intelligence Agency (CIA) spy.

On the eve of the 2014 general elections, Madonsela released a report intriguingly entitled Secure in Comfort in which she found that Zuma and his family had ‘unduly benefited from’ non-security upgrades, such as an amphitheatre, a cattle kraal, and a swimming pool (otherwise known as a ‘fire’ pool), at his private residence in Nkandla, KwaZulu-Natal, and recommended that he should pay a portion of them.

Zuma had disregarded her remedial action until the CC had stepped in and declared that the PP’s remedial actions are ‘binding,’ unless taken on a judicial review and nullified by a court of law, thanks to the Economic Freedom Fighters (EFF) and the DA, which had taken the matter to the ConCourt. In doing so, went the judgement, he had violated his oath of office.

The damning judgement, delivered by the Retired Chief Justice Mogoeng Mogoeng, amplified calls for him to resign and/or for the ANC to recall him as the president. However, he survived the scandal.

Towards the end of her non-renewable seven-year term of office, Madonsela investigated a complaint to the effect that Zuma had enabled Gupta brothers (Ajay, Atul, and Rajesh, nicknamed ‘Tony’), who had migrated from India to explore business opportunities in democratic South Africa, and their cronies to engage in the so-called state capture. Deliberately, Zuma frustrated her investigation, hoping that she would not be able to complete it, of course.

In fact, with his former lawyer, Michael Hulley, doing much of the talking in a four-hour interview with Madonsela, he insisted that it should be referred to her successor, Busisiwe Mkhwebane. Along with David Van Rooyen, whose startling appointment as finance minister was allegedly influenced by the Gupta brothers, he had brought an urgent application to interdict Madonsela from releasing her report entitled State of Capture, claiming that she did not interrogate him during her investigation.

He withdrew his application and that of Van Rooyen was struck off the roll due to non-urgency. In her report, Madonsela recommended that he should appoint a commission of inquiry, chaired by a judge chosen by the Chief Justice, to investigate allegations of state capture.

Claiming that Madonsela had usurped his constitutional power to appoint a commission of inquiry, Zuma unsuccessfully took her report on the judicial review. In her notice, he sought a court to revert the investigation to the PP’s office for further investigation and Mkhwebane had entertained his request.

Rejecting Mkhwebane’s nomination, the DA alleged that she was an intelligence agent with close ties to Zuma. In an interview with Power987, a new Gauteng-based talk radio station, the former DA leader said Zuma preferred her.

It has been proven that Mkhwebane plied her trade at the State Security Agency (SSA) as an intelligence analyst for its local branch. Therefore, she had sworn her allegiance to Zuma, who is a former ANC intelligence chief.

Apart from the Constitution and pertinent legislation, the agents had sworn their allegiance to the president, according to the abridged High-Level Review Panel Report on the State Security Agency. Incidentally, the intelligence services constitute Zuma’s “key institutional base,” wrote British historian Stephen Ellis in External Mission.

In her first media interview as a PP nominee, Mkhwebane raised concerns that she had been planted into the office to exonerate Zuma and his cronies from wrongdoings. Put differently, Zuma had captured the PP’s office.

While the country was grappling with a state capture phenomenon, she said her main focus would be at a grassroots level. Two complaints she investigated suffice to assert that it had indeed been captured to exonerate Zuma and his cronies from accountability.

The first one was an investigation into loans that the South African Reserve Bank (SARB) had granted the Amalgamated Banks of South Africa (ABSA) during an apartheid epoch. During her investigation, she met with Zuma and/or his office twice, but she did not disclose the meetings in her report.

In her preliminary report, Mkhwebane had recommended that the president should appoint a commission of inquiry into the loans, but Zuma objected to her remedial action. She dropped it in her final report.

The other investigation is into the Estina Diary farm project in Free State. Prior to hers, the National Treasury (NA) had found that former Free State premier Elias ‘Ace’ Magashule and former Free State MEC for agriculture Mosebenzi Zwane engaged in wrongdoings, but she exonerated them.

Successfully, the DA had taken her report on a judicial review and a court of law nullified it, adding to a series of personal costs against her. In fact, she could not defend her reports in courts of law.

“She lost everything,” as ANC secretary-general Fikile Mbalula aptly put it. Incidentally, he once described her as “the hired gun”.

In the end, the NA instituted an inquiry into her fitness to hold office. While the inquiry is ongoing, her disastrous term of office is increasingly coming to an end and eight candidates have been shortlisted to succeed her, including the Deputy and Acting PP Advocate Kholeka Gcaleka.

The question thus begs itself as to whom the incumbent President Cyril Ramaphosa prefer. Undoubtedly, he prefers Gcaleka to avoid accountability as well.

Ramaphosa appears to have captured the law enforcement agencies as well. For example, the DPCI, which investigates matters and then sends dockets to the NPA to decide on whether to prosecute or not, is yet to update the nation on its progress regarding a Phala Phala matter over a year since former SSA director-general Arthur Fraser had laid a criminal complaint against him and Wally Rhoode, a head of Presidential Protection Service (PPS), among others, at Rosebank police station, situated in Johannesburg, Gauteng.

On 9 February 2020, a robbery occurred at the president’s Phala Phala wildlife farm in Bela Bela, Limpopo, and stashes of money (in US currency) hidden in a sofa went missing, alleged Fraser, who is one of key Zuma’s intelligence clients, in an explosive affidavit. In lieu of reporting the robbery to the police for an investigation, he wrote, the president had instructed Rhoode to investigate the matter, apprehend suspects, and recover the stolen money.

According to Fraser, Rhoode had assembled a team that comprised former and current members of the police’s intelligence unit as well as a nearby farmer who possesses investigative skills. The team, he says, apprehended the suspects and interrogated them at the farmhouse. He further alleges that Ramaphosa bribed them and a domestic worker with R150 000 each to silence on the matter.

In addition to the DPCI, the NA and the PP had been roped in to investigate the matter. To that effect, the Speaker of the NA, Nosiviwe Mapisa-Nqakula, had instituted a Section 89 Panel, chaired by Retired Chief Justice Sandile Ngcobo.

The three-member panel concluded that, based on information at its disposal, Ramaphosa ‘may have’ committed impeachable offences. By his own conscience, he sought to instantly resign as the South African president following the release of its report, but his close allies convinced him against his decision.

The ConCourt has dismissed his application for direct access to take the damning report on a judicial review and nullify it. While the matter is still open for litigation, the PP has given him a leg to stand. In her long-awaited report, Gcaleka exonerated the ANC president of any wrongdoing.

***Tshabalala is an author and independent political analyst

Disclaimer: The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of the Republic Mail and its associates.

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