Public Protector Kholeka Gcaleka is fighting attempts to have her Phala Phala report reviewed and set aside. Picture: Armand Hough/Independent Newspapers
PUBLIC Protector Kholeka Gcaleka has again defended her investigation into the theft of foreign currency at President Cyril Ramaphosa’s Phala Phala farm in February 2020.
Gcaleka was responding to the Hola Bon Renaissance Foundations’ (HBR Foundations’s) Gauteng High Court, Pretoria, application for her June 2023 report to be reviewed and set aside.
The HBR Foundation is a non-profit organisation.
In response to the HBR Foundation, acting executive manager of investigations Vusumuzi Dlamini told the court that the foundation’s affidavit was replete with assumptions and leaps of logic.
“HBR Foundation selectively interprets the Phala Phala report and record outside of the context and evidence provided,” Dlamini said.
He said the foundation brought its case under an “inappropriate” section of the Constitution.
”There is unsettled dissonance about the standard against which reviews of Public Protector reports are to be brought. The Supreme Court of Appeal (SCA) has stated that reviews of Public Protector decisions should be brought under the principle of legality, the Constitutional Court has left this issue open,” Dlamini said in his answering affidavit, adding that the HBR Foundation is so far outside the debate that it was incorrect.
He continued: “HBR Foundation brings its review under section 33(1) of the Constitution. This is the right to just administrative action in the Bill of Rights. On this approach the highest court has settled the issue – the principle of subsidiary demands that where legislation must have been enacted to give effect to a provision in the Constitution, recourse must be had to that legislation and not directly to the provision of the Constitution.”
Dlamini stated that if not on the Promotion of Administrative Justice Act, then the basis of the HBR Foundation’s review should be the principle of legality and not section 33 of the Constitution.
The section declares that everyone has the right to lawful, reasonable, and procedurally fair administrative action and that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
Dlamini said the HBR Foundation listed five complaints about the Phala Phala report but failed to explain the standard Gcaleka was supposed to have contravened.
”Those standards include the principle of procedural fairness, rationally, ultra vires (beyond the powers), error of law or fact, etc.”
The African Transformation Movement (ATM) has also launched a separate high court action to review and set aside Gcaleka’s report.
However, the public protector has indicated that the HBR Foundation’s application opposes the ATM’s, alleging that Gcaleka interpreted her jurisdiction too narrowly.
The HBR Foundation has told the high court that Gcaleka interpreted her jurisdiction too widely.
“These allegations cannot exist comfortably together, they are mutually exclusive. They also reflect the fact that the Public Protector is (and would be criticised) for any decision made on jurisdiction in whatever direction and thus neither the ATM or HBR Foundation can suggest a ‘correct’ decision,” Dlamini added.
Gcaleka told the high court that the HBR Foundation had failed to substantiate the basis of the relief it seeks to set aside the findings in the Phala Phala report and that its application stands to be dismissed, with costs, based on the reasons set out in Dlamini’s affidavit.
loyiso.sidimba@inl.co.za