Public protector clears Ramaphosa on Dirks’ complaint

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The public protector has cleared President Cyril Ramaphosa in the investigation as to whether he breached the executive code of ethics with remarks about ANC officials using public funds for party campaigns in a leaked audio recording.

In one of a wealth of reports released on Friday, acting public protector Kholeka Gcaleka said allegations made against the president by now suspended ANC MP Mervyn Dirks were unsubstantiated.

Dirks claimed that the president breached the code by failing to report the alleged abuse of taxpayer’s money by members of the ANC for the party’s 54th elective conference at Nasrec in 2017 to the relevant authorities for investigation.

“It has been found that the allegation is unsubstantiated. Evidence obtained indicates that prior to the president making these utterances, it was widely reported even in the Zondo Commission on the misuse of public funds for the ruling party political gains. “

Gcaleka said there was no evidence on which her office could conclude that Ramaphosa had breached the code.

“In the circumstances, the public protector is satisfied that the utterances of the president in the audio was not in violation of the code. Accordingly, the investigation is closed.”

Dirks had, in response to a discretionary note he was sent with the finding, accused the public protector of shielding the president, as the remarks in the recording allegedly referred to funding for his CR17 campaign for the ANC presidency.

Gcaleka said this too was unfounded. She added that his complaint was not about the CR17 campaign and that in any event, the office of the public protector could not reinvestigate that matter, given its past probes into funding for the campaign. 

In an aside, she ventured, that the chapter nine institution welcomed this month’s ruling by the constitutional court that the ethics code is unconstitutional in as far as it does not unambiguously compel the disclosure of funding for campaigns for party positions. 

“Be that as it may, we agree with the constitutional court’s confirmation of an earlier ruling of the high court that the executive code of ethics is unconstitutional in so far as it does not require members of the executive who are subject to the code to disclose donations made to internal party political election campaigns. We look forward to the review and amendment of the code within the next 12 months.”

In two other reports released on Friday, Gcaleka respectively found that a flight Speaker Nosiviwe Mapisa-Nqakula took to Zimbabwe two years ago, while she was defence minister, improperly enriched the ANC and that the defence department’s flight to Cuba to procure Covid-19 drugs was irregular.

She said Mapisa-Nqakula breached the constitution by taking an ANC delegation, headed by the then ruling party secretary-general Ace Magashule along with her in a military plane, when she flew to Harare on 8 September 2020 for talks with her Zimbabwean counterpart.

“It is found that Ms Mapisa-Nqakula’s conduct of ferrying the ANC delegation to and from Harare, Zimbabwe in a SANDF aircraft was in breach of section 96(1)(c) of the Constitution, in a sense that state resources were inappropriately used to improperly benefit a political party. 

“Accordingly, Ms Mapisa-Nqakula’s conduct constitutes improper conduct as envisaged in the Constitution and maladministration as contemplated in the Public Protector Act.”

The public protector received five separate complaints against Mapisa-Nqakula and President Cyril Ramaphosa in relation to the trip. Her report did not direct the president to take further action against the speaker, as he had already, in 20202, reprimanded her and ordered that three months of her salary be forfeited to the Solidarity Fund.

Nor did it urge action against the ANC, as the party had in September that year refunded the department R105,545 for the benefit derived from the flight.

Gcaleka however directed the president to see to it that a directive for compliance with the ministerial handbook is issued within 30 days to ensure that ministers and deputy ministers respect section 93 of the constitution at all times when dealing with state resources.

She said her investigation into the contentious procurement by the South African National Defence Force of Interferon-Alpha-2B Heberon from Cuba focused on whether or not it had followed due process and concluded that it had not as the officials involved relied on nothing other than a bilateral agreement signed eight years prior.

Not only did they pay no heed to legislation governing the procurement of medicine, they also flouted the terms of the bilateral agreement itself.

“The DOD contravened the said bilateral agreement which they claimed to have relied on to procure the drug because Article 1 thereof clearly states that the bilateral agreement is subject to each country’s domestic laws and 14 financial constraints.”

The drug was not registered in South Africa to treat Covid-19 and defence officials only applied for registration to the South Africa Health Products Regulatory Authority after importing it. SAPHRA ordered that the batches brought into the country be returned to Cuba.

“The conduct of the DOD, in procuring the drug from Cuba constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4) (a) (i) and (ii) of the Public Protector Act.”

Gcaleka ordered that the secretary of defence must within 60 days initiate an investigation into the illegal importation of the drug and take appropriate action against the officials who were involved.

“The chief of the SANDF must also adhere to all the delegated lawful instructions received from the secretary of defence in terms of section 10 of the Defence Act relating to disciplinary action or departmental investigations on this matter. “