The ATM’s argument that she skirted this and other issues in the scandal had no merit, Gcaleka’s office has argued in court papers
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Zungula and DA leader John Steenhuisen filed complaints with the public protector in June 2022, shortly after Arthur Fraser, the former head of the State Security Agency, told the police that a small fortune in foreign currency was stolen from Phala Phala in February 2020. This meant repeatedly engaging with other organs of state from parliament to the police to the registrar of deeds in Limpopo to SARS and SARB.
They argued that when the tax compliance of a head of state is in question, they should be able to invoke access to information rights and if there were a statutory hindrance to this, be allowed to challenge its constitutionality. The high court held that sections 35 and 46 of PAIA were unconstitutional where they precluded access to tax records, even where the normal requirements for public interest disclosure have been met.
But whatever the legal position, he added, Gcaleka took the view that it was best to let SARS decide whether it would investigate allegations regarding Ramaphosa’s taxes. Multiple investigations would be a waste of public money and pose the risk of forum shopping. The subpoena was sent, but the bank replied that the issues on which Gcaleka sought clarity “were in the exclusive domain of FInSurv and SARB and did not relate to the powers of the PPSA”.
Zungula faulted Gcaleka for not obtaining oral evidence from the lodge manager at the farm, Sylvester Ndlovu, who discovered that money was stolen, and for not subpoenaing the housekeeper, Froliana Joseph. On this last point, there was no evidence that Ramaphosa had directed the head of that unit, major-general Wally Rhoode on how to handle the investigation that ensued.
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