“Disingenuous in some parts and evasive in others,” is how President Cyril Ramaphosa describes the public protector’s affidavit filed in his court challenge to her investigation into his CR17 campaign.
Ramaphosa wants the court to set aside the 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, Public Protector Busisiwe Mkhwebane found Ramaphosa had 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”.
Ramaphosa immediately took the report to court on review.
The president filed his replying affidavit on Tuesday — in which he responds to claims by Mkhwebane in her answering affidavit — including that he had been obfuscating and had made “technical arguments”.
Ramaphosa said: “One of its [Mkhwebane’s answering affidavit] recurring themes is a complaint about me raising technical points instead of dealing with the real issues. I understand the technical points referred to by the public protector to be the law. I do not understand the complaint, given that the public protector has to uphold the rule of law.”
Ramaphosa stuck to his guns on his claim that Mkhwebane did not have jurisdiction to extend her investigation into the CR17 campaign as the campaign related to party funding and not his “conduct in state affairs or the public administration in any sphere of government”.
“It is clear that the public protector had no jurisdiction, and she cannot explain why she thought she could extend the scope of her investigation to include matters over which she had no jurisdiction,” he said.
He said he continued to question Mkhwebane’s motives — “given her unlawful expansion of the scope of her investigation and her over-eagerness to reveal bank statements and information detailing donations received by the CR17 campaign”.
Mkhwebane and the Economic Freedom Fighters, who have joined the case, had both been against the sealing of the bank statements and other documents which are part of the court record but have been kept away from public view at the request of the president.
Mkhwebane also got the Executive Ethics Code wrong, Ramaphosa said.
In her report, Mkhwebane quotes the code as prohibiting both the deliberate and inadvertent misleading of Parliament. But the code actually only refers to the “willful” misleading of Parliament. In her answering affidavit, Mkhwebane admitted that this was an error in her report but said it was not material — because her finding was that Ramaphosa had deliberately misled Parliament.
However, Ramaphosa takes issue with this, saying her finding “refers to both ‘inadvertent’ and ‘deliberate’ misleading of the National Assembly. My conduct could not have been deliberate and inadvertent at the same time,” said the president.
“To reach the conclusion that the ‘error’ does not matter, because the Public Protector ‘primarily’ found me guilty of deliberately misleading the national assembly, one would have to read selected exce[r]pts identified by the Public Protector instead of reading the Report as a whole,” he said.
It was “disingenuous” to say this was just an “error” because she relied on the same incorrect version of the code in her report into Public Enterprises Minister Pravin Gordhan, Ramaphosa added.
Mkhwebane was also “all over the place” in the report and answering affidavit about whether Ramaphosa has — according to her — breached the Executive Ethics Code (which applies to the executive) or the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (which applies to members of Parliament), Ramaphosa said.
Ramaphosa further insisted that Mkhwebane should have given him an opportunity to address her on her proposed remedial action and on the “illegally obtained” emails — the emails that Mkhwebane attached to court papers that suggested he knew more about the fundraising efforts of the CR17 team then he had made out. In any event, the emails were “superfluous” to the original complaints made. “Their release by the Public Protector could only have been meant to embarrass me, rather than to serve any legitimate Public Protector purpose,” he said.