---
title: "The Phala Phala ball must now be squarely in the court of the National Prosecuting Authority"
description: "When a former Chief Justice reports that, prima facie, a serious crime has been committed by the President, it is incumbent upon the National Prosecuting Authority to investigate via its Investigating Directorate and prosecute ‘diligently and without delay’ as required by section 237 of the Constitution."
type: "OpinionNewsArticle"
publisher: "Daily Maverick"
site: "https://www.dailymaverick.co.za"
section: "Opinionistas"
author: "Paul Hoffman"
author_url: "https://www.dailymaverick.co.za/author/paulhoffman/"
canonical_url: "https://www.dailymaverick.co.za/opinionista/2022-12-04-the-phala-phala-ball-must-now-be-squarely-in-the-court-of-the-national-prosecuting-authority/"
published: "2022-12-04T22:19:16"
updated: "2022-12-06T07:54:12"
lang: "en-ZA"
word_count: 2804
---

# The Phala Phala ball must now be squarely in the court of the National Prosecuting Authority

> When a former Chief Justice reports that, prima facie, a serious crime has been committed by the President, it is incumbent upon the National Prosecuting Authority to investigate via its Investigating Directorate and prosecute ‘diligently and without delay’ as required by section 237 of the Constitution.

By Paul Hoffman · Published 5 December 2022, 00:19 SAST · Updated 6 December 2022, 09:54 SAST

## Content

The acronym Precca is shortly to become a household term in South Africa following the publication of the report of the much-maligned Ngcobo Panel assembled to establish whether there is sufficient evidence to justify Parliament considering the removal from office of President Cyril Ramaphosa.

Precca stands for The Prevention and Combatting of Corrupt Activities Act of 2004. Its name is a good clue for what the act sets out to do. The reason for introducing it to the statute book of SA is easy to find in its own preamble which reads:

Preamble:

WHEREAS the Constitution enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;

AND WHEREAS the Constitution places a duty on the State to respect, protect, promote and fulfil all the rights as enshrined in the Bill of Rights;

AND WHEREAS corruption and related corrupt activities undermine the said rights, endanger the stability and security of societies, undermine the institutions and values of democracy and ethical values and morality, jeopardise sustainable development, the rule of law and the credibility of governments, and provide a breeding ground for organised crime;

AND WHEREAS the illicit acquisition of personal wealth can be particularly damaging to democratic institutions, national economies, ethical values and the rule of law;

AND WHEREAS there are links between corrupt activities and other forms of crime, in particular organised crime and economic crime, including money-laundering;

AND WHEREAS corruption is a transnational phenomenon that crosses national borders and affects all societies and economies, and is equally destructive and reprehensible within both the public and private spheres of life, so that regional and international cooperation is essential to prevent and control corruption and related corrupt activities;

AND WHEREAS a comprehensive, integrated and multidisciplinary approach is required to prevent and combat corruption and related corrupt activities efficiently and effectively;

AND WHEREAS the availability of technical assistance can play an important role in enhancing the ability of States, including by strengthening capacity and by institution building, to prevent and combat corruption and related corrupt activities efficiently and effectively;

AND WHEREAS the prevention and combating of corruption and related corrupt activities is a responsibility of all States requiring mutual cooperation, with the support and involvement of individuals and groups outside the public sector, such as organs of civil society and non-governmental and community-based organisations, if their efforts in this area are to be efficient and effective;

AND WHEREAS the United Nations has adopted various resolutions condemning all corrupt practices, and urged member states to take effective and concrete action to combat all forms of corruption and related corrupt practices;

AND WHEREAS the Southern African Development Community Protocol against Corruption, adopted on 14 August 2001 in Malawi, reaffirmed the need to eliminate the scourges of corruption through the adoption of effective preventive and deterrent measures and by strictly enforcing legislation against all types of corruption;

AND WHEREAS the Republic of South Africa desires to be in compliance with and to become Party to the United Nations Convention against Corruption adopted by the General Assembly of the United Nations on 31 October 2003;

AND WHEREAS it is desirable to unbundle the crime of corruption in terms of which, in addition to the creation of a general, broad and all-encompassing offence of corruption, various specific corrupt activities are criminalized, BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

One of the “Various specific corrupt activities” that are criminalised in Precca is the failure to report any theft to a value in excess of R100,000 as set out in section 34:

1. *Duty to report corrupt transactions.—*

(1) Any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed—

(a) an offence under Part 1, 2, 3 or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2; or

(b) the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to the police official in the Directorate for Priority Crime Investigation referred to in section 17C of the South African Police Service Act, 1995, (Act No. 68 of 1995).

\[Sub-s. (1) substituted by s. 21 of Act No. 10 of 2012.\]

(2) Subject to the provisions of section 37 (2), any person who fails to comply with subsection (1), is guilty of an offence.

(Date of commencement of sub-s. (2): 31 July, 2004.)

(3) (a) Upon receipt of a report referred to in subsection (1), the police official concerned must take down the report in the manner directed by the National Head of the Directorate for Priority Crime Investigation, appointed in terms of section 17C (2) (a) of the South African Police Service Act, 1995, (Act No. 68 of 1995), and forthwith provide the person who made the report with an acknowledgment of receipt of such report.

\[Para. (a) substituted by s. 21 of Act No. 10 of 2012.\]

(b) The National Head of the Directorate for Priority Crime Investigation, must within three months of the commencement of the South African Police Service Amendment Act, 2012, publish the directions contemplated in paragraph (a) in the Gazette, during which period any existing notice issued in terms of the Act shall remain in force.

\[Para. (b) substituted by s. 21 of Act No. 10 of 2012.\]

(c) Any direction issued under paragraph (b), must be tabled in Parliament before publication thereof in the Gazette.

Before 2012 it was sufficient compliance with Precca to report to the police, since 2012 the report must be to the Directorate for Priority Crime Investigation or Hawks as they are popularly known.

The first National Head of the Hawks, Anwa Dramat, duly complied with his obligation to publish directions. These directions are available to the public[in electronic format](https://www.saps.gov.za/dpci/reportingguide.php).

Under section 34(4) a person who is a member of a close corporation is regarded as responsible for making the report contemplated in section 34(1) to the Hawks. There is no provision allowing the delegation of that statutory duty.

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It is common cause that a burglary took place at the farm Phala Phala in the Bela Bela district on 9 February 2020 during which the burglars stole at least $500,000, (one of them having confessed to stealing $800,000) in banknotes concealed in a couch in the farmhouse. President Cyril Ramaphosa was aware of the presence of the banknotes at the farm from Boxing Day of 2019 and was in Addis Ababa at the time of the burglary which was promptly reported to him by his staff at the farm. He is the sole member of the close corporation which farms with game and Ankole cattle at Phala Phala.

Apparently, the foreign currency stolen was, at least in part, the proceeds of the sale of 20 head of buffalo to a Sudanese businessman who had purchased the buffalo on Christmas Day in 2019 from the president’s close corporation. The buffalo are all still at Phala Phala in December 2022. Very little is known about their purchaser. The origin of the stolen foreign currency is not strictly relevant to the application of section 34 to the facts. It is common cause that it was stolen, thus triggering the duty to report the theft.

No police docket has ever been opened in respect of the breaking and entering at Phala Phala nor has the theft of the unbanked US currency been reported to the Hawks.

According to the Section 89 Panel under chairmanship of former Chief Justice Sandile Ngcobo, the president has, *prima facie*, contravened the provisions of section 34 of Precca because he is in breach of his duty, as sole member of the close corporation from which the US currency was stolen, to report the matter to the Hawks. This breach amounts to a serious criminal offence for which he is in jeopardy of being fined or sentenced to between three and 10 years’ imprisonment, quite apart from losing his position as president.

The evidence of failure to report comes from the president himself, it is not “[limited, untested and largely hearsay](https://www.dailymaverick.co.za/article/2022-12-02-a-flawed-report-and-dangerous-precedents-why-president-cyril-ramaphosa-should-not-resign/)” as Professor Richard Calland would have it. The learned professor is right about the violations of the Constitution which are not criminal contraventions, being the preserve of the National Assembly alone in the context of an impeachment complaint, but he is wrong to argue that the commission of any crime by the president is the sole preserve of the National Assembly.

Contravening section 34 is a crime. Addressing that crime is the business of the criminal justice administration.

The president deals with his section 34 obligations as follows in his response to the case brought against him by the RET-faction-friendly ATM, a two-member party in the National Assembly, for his impeachment:

“I reported the housebreaking and theft to General Rhoode as he is responsible for ensuring my safety and security in view of the position I occupy. I expected that he would do all that is necessary and take any other steps required in response to the information I had shared with him.”

There is no suggestion that General Wally Rhoode reported, or was asked to report, the theft to the Hawks as required of the member of the close corporation having knowledge of the theft by section 34. What the president says he did is clearly not compliance nor was he entitled to delegate the section 34 duty to Rhoode.

The panel concludes that:

1. 
  1. The legislature, in its wisdom, must have had good reasons for including theft as one of the reportable offences. But why would the legislature be concerned about people who do not report the theft of R100,000 or more? One reason for forcing people to report theft of R100,000 or more is to stamp out money laundering or organized crime by forcing individuals to report theft of large sums of money that the owners of the money may be reluctant to report for fear of being called upon to account for the stolen money.
  2. A person who keeps huge sums of illicit money concealed at his or her house is unlikely to report the theft of such money for fear of being discovered that he or she is involved in money laundering. This would be too much to expect of human nature. For this reason, the legislature considered it prudent to require any person who has knowledge of the commission of the offence of theft to report it. If you happen to know or ought reasonably to have known or suspected that this money has been stolen from the owner, the law requires you report this theft so that the owner of the money can be called upon to explain the source of the money as well as why he or she did not report the theft.
  3. The owner of the money stolen is also required to report theft of his or her money. That you happen to be a victim of crime yourself, matters not. You must report the theft…
  4. Previously these offences could be reported to a police official. The provision was amended to require the report to be made to “the police official in the Directorate for Priority Crime Investigation”. The function of this Directorate is to prevent, combat and investigate national priority offences. This reflects the seriousness in which the legislature views the offences that must be reported…
  5. The President was prima facie obliged to report the theft of the foreign currency to a police official in the Directorate for Priority Crime Investigation as required by the provisions of section 34(1)(b) of Precca…
  6. On the information presented to us, the housebreaking and theft of US$580,000 was not reported to a police official in the Directorate for Priority Crime Investigation as required by Section 34(1). Nor was it reported to any SAPS station as no case was opened or a docket registered for this offence. In our view this information, prima facie, discloses that the President violated section 34(1) read with section 34(2) of Precca…

263.2. The misconduct based on violations of the provisions of section 96(2)(b) and the violation of section 34(1) of Precca were committed to keep the investigation a secret.

263.3. The request to the Namibian Police to “handle the matter with discretion” confirms this intention.

The president puts forward a rather strained interpretation of Precca which is unlikely to find favour with any court or other forum called upon to decide whether he has contravened section 34. He says:

42.4. It could never have been the intention of the Precca to specifically place a duty on ‘a person of authority’ to report an offence committed by a person not fallingwithin the sphere of relationship relevant to the person’s position of authority. The duty placed on a person of authority to report an offence in terms of the Precca must be interpreted to arise only in respect of a person who is known, or ought reasonably to have been known, or suspected to have committed an offence by virtue of that person’s position of authority. This is so particularly because a failure to report such knowledge or suspicion constitutes an offence. Respectfully, the idea that the failure by a ‘person of authority’ to report an offence committed by someone unknown to them and not falling within the sphere of relationship relevant to that person’s position of authority would constitute an offence in terms of the Precca is incorrect.

The Panel’s analysis of Precca in paragraphs 243 *et seq* of its report, quoted above, is, with respect, preferable to that of the president. The inference it draws concerning the desire for secrecy is the only reasonable inference available.

In a functioning constitutional democracy under the rule of law, when a former Chief Justice reports that, *prima facie*, a serious crime has been committed by the president, it is incumbent upon the National Prosecuting Authority to investigate via its Investigating Directorate (ironically established by the self-same president) and prosecute “diligently and without delay” as required by section 237 of the Constitution.

The panel report poses a test of the ability and preparedness of the NPA to act without fear, favour or prejudice as it is required to do by section 179 of the Constitution. Constitutionalists and democrats must hope and pray that the NPA leadership is up for the challenges that the alleged contravention of section 34 of Precca pose for it. Their right to equality before the law is at stake.

If the president is charged, the rules of his party oblige him to “step aside”. If he is convicted a great deal of huffing and puffing in Parliament can be spared. If he resigns now a great deal of fear and anxiety in the nation will be spared and his decision to resign can be used in mitigation of the sentence he may face if convicted of a contravention of section 34.

At this stage it is not clear why the large amount of cash in US dollars was left concealed in a sofa at Phala Phala for more than 40 days. Was the money “tax hot” or the proceeds of money laundering, or is the president so rich that he can afford to be sloppy about selling foreign currency timeously within the 30 days allowed by the Reserve Bank? Is there an innocent explanation for leaving so valuable a stash in a couch?

The VAT, banking, forex and income tax records and accounts of the close corporation, when taken with the limping receipt issued by Mr Ndlovu, the silent one, to the alleged buyer of 20 buffalo, a sale effected apparently without complying with the veterinary certification requirements of the law, and without delivery of the buffalo, will all be instructive. The NPA can build on the investigations of the OPP and the Hawks, it ought not to remain passive and could collaborate with SARS and the Reserve Bank in the matter.

At the time of writing it is unclear whether the reported willingness of the president to resign will, after the usual dithering, end in an actual resignation or a possible recall by the leadership of his party. If the NPA decides to prosecute, it will be intolerable, and contrary to his party’s step-aside rule, for the president to remain in office whether or not he decides to take the panel report on review rather than deal with its consequences in parliament.

If the NPA decides not to prosecute, it ought to account to the public in respect of its reasons for not prosecuting. **DM**