Ramaphosa launches court review of Public Protector’s Bosasa Report



The Public Protector had no authority to investigate the CR17 campaign, said President Cyril Ramaphosa in court papers filed on Wednesday. “The Public Protector’s approach in this matter is unfortunate and leaves a lot to be desired.”

Ramaphosa has urgently approached the high court to set aside the Public Protector’s Bosasa report and, in the interim, to interdict the implementation of some of the remedial action directed by her.

Busisiwe Mkhwebane’s report found that Ramaphosa had deliberately misled Parliament when he answered a Parliamentary question about a donation from Gavin Watson — the CEO of African Global Operations, formerly Bosasa — to the CR17 campaign, the campaign supporting his bid for presidency of the ANC at the party’s Nasrec elective congress in 2017. She also found that he had breached the Executive Ethics Code when he did not declare to Parliament the donations to the CR17 campaign.

In her report, Mkhwebane revealed that the CR17 campaign had received tens of millions of rands. However, the exact number is unclear as many of the amounts detailed in her report were disputed by Ramaphosa.

As remedial action, Mkhwebane directed the Speaker of Parliament to refer the non-disclosure to Parliament’s ethics committee and to demand that he disclose all the donations received by the CR17 campaign.

Mkhwebane also found that there was “merit” in the suspicion of money laundering, because the payment passed through “several intermediaries, instead of a straight donation towards the CR17 campaign”.

In his court papers, Ramaphosa said the Public Protector was, like him, subject to the Constitution and the law did not empower her to unilaterally expand the scope of an investigation under the Executive Ethics Act.

Ramaphosa said that the complaints that gave rise to Mkhwebane’s investigation, made by DA leader Mmusi Maimane and EFF deputy president Floyd Shivambu were limited to the R500 000 donation made by Watson.

The president noted that, under the Executive Ethics Act, the Public Protector was only empowered to investigate what was in the complaints.

Instead, he said that she had called members of the campaign team and asked them “to disclose information about all donations to the CR17 campaign”. He added that: “This request was declined on the basis that it was not relevant to the complaints.” She had also subpoenaed the law firm that held the trust account to which donations were made, including the financial statements of the account.

Ramaphosa said there was no obligation on him to disclose donations received by the campaign — this was “a fundamental misreading of the code”.

The question had even been looked at by a joint ad hoc committee of Parliament when Maimane had faced a similar complaint, he said. The committee found that “the code is vague on the disclosure of campaign funding. In the light of the vagueness of the code, the committee is not in a position to make a finding of non-disclosure in this case”.

“Until the Code is amended to clarify whether or not there is an obligation for members of the National Assembly and the Executive to disclose campaign donations, it is utterly incompetent for the Public Protector to impose such a duty on the National Assembly,” said the President.

He also said her suspicion of money laundering was without “any factual foundation whatsoever”. Money laundering was a statutory offence set out in the Prevention of Organised Crime Act, he said.

For an offence of money laundering, the money in question must be the proceeds of crime, and the implicated person should have known this. Then, there needed to be an agreement the effect of which was to conceal the source of the money for the purpose of avoiding prosecution, he said.

“The Public Protector did not engage with this definition at all,” said Ramaphosa, and there was no evidence that any of the requirements had been met — even on a prima facie basis.

He said the payment from Watson was made to the CR17 campaign’s trust account via company associated with Watson — Miotto Trading. “It is false that the money went through ‘several intermediaries’. The money came from Watson, through his agent, into account EFG2 [the campaign’s trust account].”

Mkhwebane did not even reference the Prevention of Organised Crime Act (POCA) in her report, he said. Instead she referred to the Prevention and Combating of Corrupt Activities Act (PRECCA), which does not deal with money laundering, said Ramaphosa.

“The fact that the Public Protector appears unable to distinguish between PRECCA and POCA is gravely concerning. If the Public Protector had paid attention to the provisions of the applicable law, namely POCA, she would have realised that the elements of the definition of the crime of money-laundering, even on a prima facie basis are not established,” said Ramaphosa.

Instructing the NPA to investigate it was incompetent in law, he said. “The NDPP [National Director of Public Prosecutions] must function independently in terms of section 179 of the Constitution. It has autonomy to decide whether or not a particular criminal conduct should be prosecuted or not,” he said.

He also said her report was based on “material errors of fact”. Prior to the release of the final report, Ramaphosa had sent Mkhwebane a response in terms of section 7(9) of the Public Protector Act, which entitles someone implicated to respond to preliminary findings. In it, he identified a number of instances where he said she had gotten the facts wrong.

In his court papers, he asked that the response be incorporated into his case. “In summary, the Public Protector misunderstood the flow of the funds, miscalculated the amounts paid, double counted the same amounts in some instances, referred to incorrect time periods and misunderstood the relationships between the various entities.”

“The role of the Public Protector is to strengthen our democracy — not to undermine confidence in the President by raising false alarms. The Public Protector has strayed,” he said.

Mkhwebane’s office did not immediately respond to a request for comment. This story will be updated should her office respond.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Related stories

Fix economy: Cut, build, tax

Expert panel presents a range of solutions to the economic crisis that include cost cutting, infrastructure spending and a solidarity levy

ANC’s rogue deployees revealed

Despite 6 300 ANC cadres working in government, the party’s integrity committee has done little to deal with its accused members

Watch it again: Ramaphosa details economic recovery plan

According to the Presidency, the plan aims to expedite, in a sustainable manner, the recovery of South Africa’s economy

Ramaphosa reiterates support for emerging farmers

On the back of the announcement that the government would allocate more land to be leased by emerging farmers, President Cyril Ramaphosa says that beneficiaries will also be trained in financial management and enterprise development

Citizens tired of being played for a fool

The use of a South African Air Force jet by ANC officials without the minister following the required procedures is one such case — and more questions arise on examination of that case

Infrastructure key to economic recovery — Ramaphosa

The governing party wants localisation at the centre of its infrastructure-led strategy

Subscribers only

SAA bailout raises more questions

As the government continues to grapple with the troubles facing the airline, it would do well to keep on eye on the impending Denel implosion

ANC’s rogue deployees revealed

Despite 6 300 ANC cadres working in government, the party’s integrity committee has done little to deal with its accused members

More top stories

Eastern Cape universities concerned by rising Covid cases

Fort Hare says 26 more students have tested positive while Walter Sisulu University says some of its students have been admitted to hospital.

SAA in talks to recoup R350-million in blocked funds...

The cash-strapped national carrier is in the process of recouping its blocked funds from Zimbabwe, which could go towards financing the airline’s business rescue plan

NSFAS’s woes do not help its mandate

Nehawu wants the scheme’s administrator, Randall Carolissen, to be removed

Unions cry foul over SABC dismissal costs and retrenchments

Broadcaster bodies say claims that a recent skills audit is unrelated to retrenchments are ‘irrational’

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday