/ 15 November 2019

Mkhwebane hits back at Ramaphosa

“No other person would be permitted to get away with the kind of obfuscation contained in the president’s affidavits
“No other person would be permitted to get away with the kind of obfuscation contained in the president’s affidavits," Public Protector Busisiwe Mkhwebane said in court papers. (Phill Magakoe/The Times/Gallo Images/Getty Images)



Public Protector Busisiwe Mkhwebane has hit back at President Cyril Ramaphosa, accusing him in court papers of obfuscating, misleading, making “technical arguments” and not dealing with the “real issues” raised by her report into his CR17 campaign for the ANC presidency in 2017.

“No other person would be permitted to get away with the kind of obfuscation contained in the president’s affidavits. If all are truly equal before the law, it should not be permitted by any court,” Mkhwebane said in an answering affidavit filed at the Pretoria high court on Thursday.

Ramaphosa wants the court to set aside the public protector’s report into a complaint by former Democratic Alliance leader Mmusi Maimane that Ramaphosa had misled Parliament when he answered a parliamentary question about a R500 000 donation from Bosasa’s Gavin Watson to his CR17 campaign.

In her report, Mkhwebane found Ramaphosa had deliberately misled Parliament and went even further, detailing transfers of millions of rands between the CR17 campaign’s various bank accounts. She said there was “merit” in a suspicion of money laundering and that “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.

READ MORE: FIC — No conclusive indication that CR17 laundered money

After the litigation began it emerged that Mkhwebane relied on certain emails. The emails — which the president has not denied are real — suggest that he knew more about the identity of the donors to his CR17 campaign then he initially said.

One email, from the CR17 team’s Donné Nicol, requested him to thank someone for their donation, and asked for permission to approach four other individuals. An earlier email identified another potential donor who might be prepared to put money into the campaign if “we had a small cocktail party”.

In his court papers, the president raised concerns about the provenance of the emails, asking for their metadata. In answer, Mkhwebane said: “I receive many documents from anonymous whistleblowers. These emails were provided to my office anonymously and in hard copies. It is for that reason that I have no metadata in respect thereof.”

Mkhwebane also referred to a public statement from the CR17 team, after he corrected his answer to Maimane’s question in Parliament. In the statement, Ramaphosa said that “to avoid conflicts of interest and to completely eliminate any expectation of reciprocal intent … it was determined that President Ramaphosa should not be involved in the fundraising effort and that he shouldn’t have a record of donors, although he was asked on occasion to attend dinners with potential donors.”

Mkhwebane said the statement was “incorrect”, referring to the emails from Nicol. She challenged Ramaphosa to “take this Honourable Court and the country at large into his confidence and explain the contents of these emails”.

She added that it was “naive and/or misleading” to contend that the CR17 campaign was to fund the ANC, and not to benefit Ramaphosa.

Mkhwebane also addressed what she said was the allegation by Ramaphosa that the documents she obtained from the Financial Intelligence Centre (FIC) were unlawfully obtained. The FIC documents detail the movement of monies in and out of various bank accounts associated with the CR17 campaign and have been sealed from public view by the high court.

Mkhwebane referred to the FIC Act, which specifically allows the FIC to provide information to the public protector. She also denied that the information the FIC gave her exceeded the scope of what she had asked for.

“I could not turn a blind eye as the president suggests I do. To suggest that when the relevant authority is investigating one transgression, it should ignore other transgressions it comes across in the process of its investigation is not a contention that should be made by a head of state.”

On the suspicion of money laundering — one of the remarks in her report that has been most criticised — Mkhwebane said it was the moving of funds from one account to another that raised the suspicion. “There were large sums of money entering and exiting this account. This compounded the suspicion,” she said.

“It would be invidious for a court to mark the work of the Public Protector as if it were marking an academic essay or for it to expect the report to read as a court judgment,” Mkhwebane said.

Where Ramaphosa pointed to miscalculations made in her report as far as the payment of monies was concerned, this was focusing on “technical issues … in an attempt to avoid taking responsibility,” she said.

“I submit that the nature of the transactions [lends] itself to possible miscalculations, but this should not detract from the fact that there were suspicious transactions warranting further investigation,” Mkhwebane said.

Mkhwebane also had harsh words for the president’s claim that she had not conducted her investigation in good faith, saying these “attacks” were “part of a grand stratagem to prepare the ground to remove me for daring to investigate those who believe they are above the law.”