(Daniel Leal Olivas/WPA Pool/Getty Images and David Harrison)
NEWS ANALYSIS
Despite his measured tone and refusal to be drawn into personal recriminations, President Cyril Ramaphosa signalled clearly on Sunday evening that he was ready for a fight with Public Protector Busisiwe Mkhwebane.
The president announced that he would be urgently approaching court to review the damning report against him — released on Friday. The report found Ramaphosa had deliberately misled Parliament when he answered a parliamentary question about a payment received by the CR17 campaign from African Global Operations, formerly known as Bosasa. Mkhwebane also found that he had breached the Executive Ethics Code by not disclosing the donations to the campaign.
She added that there was “merit” in the suspicion of money laundering, because the Bosasa payment passed through “several intermediaries, instead of a straight donation towards the CR17 campaign”, and has referred this to the National Prosecuting Authority for further investigation.
Mkhwebane now faces four separate and highly political court cases on three of her reports: the report into the early pension pay-out of former Sars deputy commissioner Ivan Pillay, the report on the so-called “rogue unit” at the South African Revenue Service, which has been challenged by Public Enterprises Minister Pravin Gordhan, and the most recent Bosasa report.
Today (Monday) the Constitutional Court will also hand down a crucial judgment on whether she should be personally liable for some of the costs of setting aside parts of her report into the ABSA/Bankorp bail-out in the 1980s.
Even if the Constitutional Court does not hold her personally liable, an adverse finding on her honesty or competence will support the cases of the president, Gordhan and Pillay. On the other hand, if the highest court clears her, it will be a boost to her claim that there is a political campaign to have her removed.
While Gordhan’s court papers have directly accused Mkhwebane of allowing her office to be used as part of a political campaign against him, on Sunday Ramaphosa carefully steered clear of those kinds of statements. However, he said she had made findings that were not based on fact. Her findings were irrational, they did not have a sound legal basis and they were not arrived at through a fair, impartial and lawful process, he said.
“Furthermore, in failing to provide me with an opportunity to comment on proposed remedial action, the Public Protector has violated provisions of the Public Protector Act, the Constitution and principles of common law,” said the President.
The president also sought to pre-empt the argument that by going to court he was undermining her office. He said while the president was not above the law, neither was the public protector above the law; both were bound by the prescripts of the Constitution. Involving the courts – the appropriate arbiter of this dispute – would strengthen the Office of the Public Protector, he said.
A consistent complaint in many of the review cases against the public protector relates to how she dealt with evidence: that she did not allow the subjects of her investigations to properly interrogate the evidence she relied on and that she did not properly consider the evidence put before her by them.
Speaking to the Mail & Guardian, Ramaphosa’s spokesperson Khusela Diko said the president had never been shown the “evidence adduced in a form of e-mails, invitations and instructions”, which Mkhwebane said showed that the president was “constantly informed of the activities” of CR17, suggesting that he knew more of what was going on in the campaign then he said.
He and members of the CR17 campaign team had said he was deliberately not told about donors. On Sunday, Ramaphosa repeated what his team had told Mkhwebane in her investigation. He knew that money was being raised and went to the fundraising dinners, “but I was never informed about the intricate details”.
The most startling part of Mkhwebane’s report was how she laid bare the CR17 campaign’s financial affairs. Having used her extensive powers of subpoena to access bank records and other documents, Mkhwebane revealed that millions were raised and spent in the campaign to deliver the ANC presidency to Ramaphosa.
Mkhwebane said: “Out of all the donations received for the campaign, records reflect that there were three single largest donations of thirty million rand … on 9 March 2017; more than 39-million rand … on 29 September 2017 and over fifty one million rand … on the same date into the EFG2 ABSA trust account, which came from the same donor.”
The amounts of money involved, and who donated them, have dominated public discussion since Friday. The exact number of millions is disputed between Ramaphosa and the Public Protector. But on Sunday evening Ramaphosa acknowledged that “quite a bit of money was raised” but this was not out of the ordinary.
“This happens with all campaigns when people campaign for office, inside their own parties and as we campaign to be elected as public representatives. The money is used for a variety of activities,” he said.
“Others also raised quite a bit of money. We may never really know. The only one we know of now is the CR17 one.”
In her remedial action, Mkhwebane said the Speaker of Parliament should “demand publication of all donations received by President Ramaphosa”. Diko said that there was no law currently that required the disclosure Mkhwebane insisted on. However the president was open to a discussion on a principled change to this position. In that event, and provided the same rules applied to everyone, he was open to disclosing his donors.
She said Ramaphosa still did not know who the donor was of the “three single largest donations”.