The Constitutional Court’s finding on 8 May that the National Assembly had erred in its rejection of the Section 89 panel report into the Phala Phala saga has thrown a spanner into the political works. For the ANC – which had misused its parliamentary majority to effect the rejection – the judgment has set in motion a backfooted effort that smacks more like limping towards damage control than a convincing PR strategy for rallying around the president.
The apex court’s rulings have a way of doing this. In 2016, the court threw a similar curve ball when it found that former president Jacob Zuma had broken his oath of office in respect of upgrades to his homestead in Nkandla. When, in 2009, the Mail & Guardian’s Mandy Rossouw first broke what would later be dubbed Nkandlagate, it sparked an immediate campaign to protect Zuma. Despite mounting evidence of malfeasance, ‘the sweat brigade’ lied, insulted and did whatever they could to rally around their political principal, write Adriaan Basson and Pieter du Toit in their book, Enemy of the People.
‘We call them this,’ the authors say, ‘because frantic perspiration was often the order of the day when these gentlemen had to defend the indefensible in public or Parliament.’ During this saga, the Office of the Public Protector was undermined; a dubious public works report was cooked up; Cabinet ministers straight-up lied; there were coverups and witch-hunts aimed at punishing underlings or finding scapegoats. The message was clear – in the defence of Zuma, everything and everyone was collateral, including the Constitution.
In November 2013, four ministers — Thulas Nxesi (public works), Nathi Mthethwa (police), Nosiviwe Mapisa-Nqakula (defence) and Siyabonga Cwele (state security) – applied to the North Gauteng High Court for an interdict to stop the Public Protector, Thuli Madonsela, from producing a provisional report on Nkandla. Various high-ranking officials tried to pressure her into abandoning her investigation. She refused, and the ministers later withdrew their application before it had been heard in court.
On 19 March 2014, Madonsela released Secure in Comfort, the 447-page report that, overnight, made her both a darling and a fiend. On the evening it was published, government’s fightback plan kicked into action when Jeff Radebe, then the minister of justice, addressed a press conference to rubbish her findings.
In a 20-page report to Parliament on 14 August 2014, Zuma basically stated that his newly appointed police minister, Nathi Nhleko, had to decide whether he was liable for any contribution to the Nkandla costs. The decision to expect someone from his own cabinet to determine this set in motion the EFF’s ‘Pay back the money’ campaign against Zuma. Eventually a parliamentary ad hoc committee comprising only ANC MPs (because parties were unable to agree on processes to be followed) ‘ended up clearing Zuma of any wrongdoing and criticising Madonsela.
Basson and Du Toit write: ‘‘They slammed her for making findings about security when she wasn’t a security expert, and said only the Constitutional Court had the authority to decide whether Zuma had contravened sections of the Constitution.’ More cringe moments followed, notably when Nhleko delivered his findings about whether Zuma should pay back the money. ‘Nhleko sweated buckets as he explained that the swimming pool at Nkandla was really a fire pool for firefighting, and thus a security feature’, amongst a host of other embarrassing justifications.
These stalling tactics eventually took a surprising turn when the ConCourt granted the EFF access in the party’s application that Zuma tell the country when exactly he intended to pay back the money. A week before the matter was scheduled before the Constitutional Court, Zuma capitulated – he finally agreed to pay back a portion of the money leaving those who had shielded him livid. ‘Ultimately, the court found that Zuma had not only failed to uphold, respect and defend the Constitution but the National Assembly’s resolution based on the minister’s (Nhleko’s) findings exonerating the president from liability was inconsistent with the Constitution and unlawful.’
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Now, South Africa faces the resumption of yet another drawn-out presidential scandal. It began on 1 June 2022 when Arthur Fraser, a former head of the State Security, laid criminal charges against Ramaphosa for allegedly covering up a theft of more than US$4 million (now said to be around US$580 000) which had taken place at the president’s Phala Phala farm.
Athough the presidency acknowledged that the robbery had taken place, it denied any criminal wrongdoing on the part of the president. Within a week, opposition parties were either querying whether the money had been declared, or were calling for Ramaphosa’s resignation. On 8 June, the Public Protector, Busisiwe Mkhwebane, announced that she would be investigating the matter. Ramaphosa suspended her the following day.
In the months that followed, Ramaphosa was reluctant to answer questions in the National Assembly, and Parliament was equally reluctant to act decisively on the matter. In September, the Speaker, Nosiviwe Mapisa-Nqakula, appointed an independent panel which concluded on 30 November that the president might have violated the Executive Ethics Code. On 6 December, the ANC used its parliamentary majority to shoot down an impeachment inquiry.
In June 2023 the acting Public Protector, Kholeka Gcaleka, cleared Ramaphosa, and in August the SA Reserve Bank did so too. In February the following year, the EFF filed papers to the ConCourt challenging the National Assembly’s blocking of an impeachment process. It has now been vindicated by the 8 May judgment in which the court found that Rule 1291 – which parliament had relied on to block the impeachment process – was invalid and unconstitutional, on the grounds that it had wrongly allowed parliament to use a simple majority vote to terminate impeachment proceedings before properly checking whether there was a case to answer.
Although is one of those exasperating episodes where a group effort has been made to avoid political accountability, Phala Phala, like Nkandla, has offered a window into the workings of our society. One has been able to peer into the gore, see the bad guys and the good ones, and realise that are plenty of both on either side. There are lessons about men and women who do right for right’s sake, and those who don’t, because other horrible people follow them down the wide and crooked.
This was meant to be one story, but during the research the author has come upon so much hypocrisy, so many agents of deceit who are now playing victim and blaming everyone but themselves, that it has to be extended. So let’s meet them in Part 2.
Featured image: President Cyril Ramaphosa on a visit to Nelson Mandela Bay earlier this month. Source: MyANC.