Mkhwebane is not bound by Ramaphosa’s request to seal Bosasa record, her lawyers say

Busisiwe Mkhwebane’s attorneys said they were not bound by Ramaphosa’s request that portions of the court record be sealed. (Gallo)

Busisiwe Mkhwebane’s attorneys said they were not bound by Ramaphosa’s request that portions of the court record be sealed. (Gallo)

Attorneys representing the public protector filed sensitive Bosasa records with the registrar of the court on Wednesday — contrary to an instruction by the deputy judge president that they be lodged directly with his office and “NOT with the registrar on the first floor where records are normally filed”.

But the office of the public protector said the records were lodged prior to the letter from the deputy judge president.

In a letter to Ramaphosa’s lawyers, dated August 14, Busisiwe Mkhwebane’s attorneys said they were not bound by Ramaphosa’s request that portions of the court record be sealed from public access.
The letter was sent the same day as a letter from Pretoria high court Deputy Judge President (DJP) Aubrey Ledwaba instructing that the records be lodged directly with his office.

Ramaphosa’s spokesperson Khusela Diko said that the letter from the DJP arrived almost an hour before the letter from the public protector’s attorneys Seanago Incorporated. But Oupa Segalwe, the public protector spokesperson, said that the records were filed before the letter from Ledwaba.

The records filed at the court are meant to include statements and emails from Ramaphosa’s CR17 campaign and are believed to reveal who the funders of the campaign were and how much of the fundraising details he was aware of.

Ramaphosa has consistently said he was kept at arms-length from the fundraising in the campaign. He is challenging Mkhwebane’s report that he misled Parliament about one of the donations and that he had a duty to disclose who the donors were to the campaign.

Last week, Ramaphosa asked the judge president to seal portions of the record from public access, saying they contained confidential third party information and that there was reason to believe that some may have been unlawfully obtained.

In the letter from the public protector’s attorney Theo Seanego, also dated August 14, Seanago said: “As you are aware, there is no direction from the DJP regarding the extension of time to file the record. We have thus filed the record, with the Registrar only, in terms of your Notice of Motion, the court rules as well as our agreement to file by 15 August 2019. You are at liberty to take any step you wish to take to protect the interest of your client”.

Ledwaba said in his letter that the issue of whether to seal portions of the court record remained “unresolved” and asked for a meeting with the parties on Thursday morning.

Seanago said the concern that the records were unlawfully obtained was “a very serious allegation against the public protector. Yet it is made without any reference to evidence whatsoever … it is entirely unfounded and without merit.”

The request was not made in terms of a formal application, Seanago said.

“We are not bound by your letter to the DJP. We also dispute that your client has any legal basis for the request, nor any standing to act on behalf of third parties who have not made any application for the record to be sealed.”

When Ramaphosa’s lawyers made the request to seal the record, they said according to the public protector’s report, she had said that she had subpoenaed bank statements from Absa but it has been reported in the media that Absa said it did not receive a subpoena.

“In addition, in the report, the public protector does not state that she subpoenaed the bank records from Standard Bank. Therefore, it is unclear how the Public Protector obtained the bank records,”  the letter from Harris Nupen Molebatsi Attorneys reads.

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