Ramaphosa takes on Mkhwebane

After the party: A performer at a CR17 campaign rally in Limpopo. The public protector has found that President Cyril Ramaphosa deliberately misled Parliament when answering a question about Bosasa’s donation to his campaign. (Photo: Paul Botes)

After the party: A performer at a CR17 campaign rally in Limpopo. The public protector has found that President Cyril Ramaphosa deliberately misled Parliament when answering a question about Bosasa’s donation to his campaign. (Photo: Paul Botes)

The public protector had no legal authority to investigate the CR17 campaign, said President Cyril Ramaphosa in court papers filed this week. “The public protector’s approach in this matter is unfortunate and leaves a lot to be desired,” he said.

The president has been locking horns with Busisiwe Mkhwebane in different court cases. On Monday, Pretoria high court judge Sulet Potterill granted an interdict suspending Mkhwebane’s directive that he take disciplinary action against Public Enterprises Minister Pravin Gordhan over her finding of a “rogue unit” at the South African Revenue Service (Sars).

On Thursday, the high court heard the president’s application over another public protector report — this one into whether Gordhan had irregularly authorised an early pension payout for former Sars deputy commissioner Ivan Pillay. Ramaphosa had been directed to take appropriate disciplinary action against Gordhan.

The president went to court to ask it to declare that he had implemented Mkhwebane’s directions — because, since there was no deadline for the remedial action, he had elected to await the outcome of Gordhan’s own review of the report.

But the Bosasa case is the big one. In her investigation into a complaint that Ramaphosa had misled Parliament on his family’s relationship with African Global Operations, formerly Bosasa, Mkhwebane made damning findings against the president himself, even directing the National Prosecuting Authority (NPA) to investigate “prima facie evidence of money laundering”.

Ramaphosa has now urgently approached the high court to set aside the whole of the Bosasa report and, in the interim, to interdict the implementation of some of the remedial action directed by Mkhwebane.

In a letter to the president on Wednesday, the public protector’s office said she would not oppose an interim interdict, because the president said he would apply for part B of the case to be heard on an expedited basis. She would, however, not agree to the president interdicting her direction of an investigation by the NPA — “because this relates to law enforcement agencies which cannot be interdicted from performing their constitutional functions”.

The report

Mkhwebane’s report found that Ramaphosa had deliberately misled Parliament when he answered a parliamentary question about a donation from Bosasa chief executive Gavin Watson to the CR17 campaign, which supported his bid to be president 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 the donations to the CR17 campaign to Parliament. Mkhwebane found that the CR17 campaign had received tens of millions of rands. But the exact figure is unclear; many of the amounts detailed in her report were disputed by Ramaphosa.

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

Mkhwebane said there was “merit” in the suspicion of money laundering — although this was not officially one of her findings — because the payment passed through “several intermediaries, instead of a straight donation towards the CR17 campaign”.

No authority to investigate the CR17 campaign

In his court papers, Ramaphosa said the law did not empower the public protector to unilaterally expand the scope of an investigation under the Executive Members’ Ethics Act. The complaints that gave rise to Mkhwebane’s investigation, made by Democratic Alliance leader Mmusi Maimane and Economic Freedom Fighters deputy president Floyd Shivambu, were limited to the R500 000 donation made by Watson.

The president said that, in terms of the act, the public protector was empowered to investigate only what was addressed in the complaints. Instead, she had gone impermissibly further, calling members of the CR17 campaign team and asking them “to disclose information about all donations to the CR17 campaign”. She had also subpoenaed the law firm that held the trust account to which donations were made, including its financial statements.

No obligation to disclose donations to party political campaign

Ramaphosa said it was “a fundamental misreading of the code” to find that he was obliged to disclose the donations to Parliament.

This 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: “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.”

Ramaphosa said it was “utterly incompetent” to direct the speaker to demand that he disclose the donations “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”.

On Mkhwebane’s ‘suspicion’ of money laundering

Ramaphosa said this was without “any factual foundation whatsoever”. Money laundering was a statutory offence set out and defined in the Prevention of Organised Crime Act (Poca), 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
a 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,” he said.

On the facts about the money

Mkhwebane’s report was based on “material errors of fact”, said the president. “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.”

On why the case is urgent

Ramaphosa said the report came at a time when the government was trying to rebuild the public’s confidence in it and to attract foreign investment in a sluggish economy.

“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 said she would respond in court papers. 

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