By Zelna Jansen
Alarms have been raised regarding the decision by Limpopo’s Director of Public Prosecutions (DPP), to no longer pursue the case against President Ramaphosa. The reason for this decision is because the National Prosecuting Authority (NPA) is part and parcel of the Executive arm of government and there are concerns about interference by the President.
On February 9, 2020, a burglary took place at the Phala Phala Wildlife (PPW). PPW is the operating name of Ntaba Nyoni Estates CC, which is a game ranching operation that conducts business at the Phala Phala farm. Phala Phala farm is owned by the President’s family trust, The Tshivhase Trust. The President reported the housebreaking to General Wally Rhoode. In the housebreaking the amount of US$580,000 (over R10m) was stolen. The President was attending an African Union Summit in Addis Ababa at the time of the theft.
This crime would have gone unnoticed had it not been for a Sunday Independent report in June 2020 about allegations made by Mr Arthur Fraser.
Parliament established an Independent Panel in terms of Section 89. This panel was led by retired Chief Justice Sandile Ngcobo. The President responded to the allegations that the $580,000 was a result of a sale of buffalos that transpired on December 25, 2019. The President was made aware of the cash transaction but would deal with it later when a senior employee returned to work. The cash was placed in a safe, however, due to the holiday season one of the employees moved the cash to the President's residence as he believed it would be safer concealed in a couch.
The Section 89 Panel Report, dated November 2022, found prima facie evidence that the President violated section 34(1) read with section 34(2) of Prevention and Combating of Corrupt Activities Act (PRECCA), 2004. The panel report also found that the President had a conflict of interest. Prima facie in criminal law means that credible evidence is present for each element of a crime. A statement that stands out in this report and in the minds of many South Africans is why leave such a huge amount of cash concealed inside a couch and not bank it?
The report by the Public Protector (PP) dated 30 June 2023, amongst others, found that the allegations that the President had violated the provisions of the Executive Ethics Code regarding any risk of a conflict between his constitutional duties and obligations and his private interests was not substantiated. PP further found that the President reported the housebreaking to General Wally Rhoode, and it was General Rhoode who acted improperly.
The South African Reserve Bank’s Financial Surveillance Department (FSD) investigated whether there was a breach of the Currency and Exchanges Act, 1933. In terms of this Act, a South African citizen, must within 30 days after becoming entitled to foreign currency, inform the Treasury in writing of such currency. The FSD report found that the President did not become entitled to the $580,000 because the cash given by Mr Hazim Mustafa was to secure the buffalo and not the conclusion of the sale.
The DPP stated on October 10, 2024, that after a “comprehensive investigation” by the Directorate for Priority Crime Investigation (DPCI), it had made its decision not to pursue a prosecution against the President. The public was not provided with reasons other than that there was not a reasonable prospect of success.
A prosecutor’s decision as to whether to prosecute must be guided by the National Prosecuting Policy. Amongst the criteria to consider is whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. This is a difficult assessment as a prosecution can never be guaranteed. The question to be answered is whether the state can prove beyond a reasonable doubt that the accused did what the accusers alleged. Beyond a reasonable doubt is required for conviction during trial. It is where guilt for each element must be proven beyond a reasonable doubt. It is a higher standard than prima facie.
Some of the factors that a prosecutor must consider is whether the evidence is strong enough to prove all the elements of an offence. Is the evidential material sufficient to meet other issues in dispute? For example, in this instance is the response by the President about the amount of cash in his residence and never banked credible enough to dispute the intention to commit a crime. Is it reasonable that when the President reported the matter to General Rhoode that he believed he was complying with the law irrespective of the fact that it did not follow normal procedures in terms of reporting the crime. Did the President obtain legal advice from his advisers on this matter as to how he proceeded?
Another question to consider is whether the witnesses are credible. Were the witnesses who provided Mr Fraser with information credible? How will the defence team regard these witnesses?
Other factors to consider are the nature and seriousness of the offence, the interests of the victim and the broader community, and the circumstances of the offender.
Politicians have stated in the media that they will be asking the NDPP to review the decision not to prosecute.
In terms of the Promotion of Access to Justice Act, 2000, prosecutorial decisions are explicitly excluded from the definition of administrative action. This means the decision to prosecute cannot be taken on review. However, courts have ruled that the right to have access to reasons stems from section 33(2) of the Constitution. An interested party may apply for judicial review of such prosecutorial decisions based on the legality and rationality of that decision not to prosecute.
These options are available to an interested party unhappy with the decision not to prosecute the President.
But as the NPA is an institution integral to the rule of law and it is important that it acts in a manner consistent with the constitutional prescripts and in this specific instance, provide more substantial reasons as to why it has decided not to prosecute the President. This is particularly significant as the essence of the complaint before the Section 89 Panel was that the President reported the theft to General Rhoode instead of reporting it to a South African Police Service official in the DPCI, as required by section 34(1) of PRECCA. On the face of it, the President committed a crime and the NPA, in the interest of justice should provide reasons as to why they decided not to prosecute.
* Zelna Jansen is an attorney specialising in law and policy reform, lobbyist, opinion writer and thought leader.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.