/ 13 March 2020

Reining in the public protector

Pp Busisiwe Mkhwebane018 Easy Resize.com
Axed public protector Busisiwe Mkhwebane. File photo by Madelene Cronje

The high court gave public protector Busisiwe Mkhwebane a bit of a bloody nose this week, calling her report into President Cyril Ramaphosa’s #CR17 campaign in parts “inexplicable”, “reckless”, and “without basis in fact or law”.

The full-bench judgment set aside her report on every one of the grounds on which it was challenged — a massive boost for Ramaphosa. It also found that, in some respects, she had not approached her investigation with an open mind, a finding that will shore up the argument being made in Parliament — that she is not fit for her office and should be impeached.

But, in addition to the scathing findings specific to the conduct of Mkhwebane in this particular investigation, the judgment also made important in-principle pronouncements — on the outer limits of the public protector’s jurisdiction and on whether there is a duty to disclose donations made to internal party leadership battles.

These two issues were at the heart of the case. When former Democratic Alliance leader Mmusi Maimane and the Economic Freedom Fighters’ Floyd Shivambu complained to the public protector that Ramaphosa had misled Parliament, their complaint was limited to a single donation made to his CR17 campaign for the presidency of the ANC — the R500000 from Bosasa’s Gavin Watson.

But Mkhwebane went far beyond the Watson donation, extending her investigation to the entire campaign — subpoenaing its bank records for a number of months and looking into all the donations made to it.

It was this part of the investigation that led Mkhwebane to make some of her most controversial findings — that the donations were a form of sponsorship, meaning that Ramaphosa had a duty to disclose them to Parliament; that there was a “situation of the risk of some sort of state capture by those donating”; and that there was a prima facie case of money-laundering that warranted investigation by the National Prosecuting Authority.

She was not allowed in law to extend her investigation in this way, said the court. Although the public protector has wide and far-reaching powers, these were applicable only within her sphere of competence or jurisdiction. The Constitution and the Public Protector Act created a fence around the type of conduct the public protector was allowed to investigate: matters involving state affairs, the public administration, public funds and the exercise of public power.

“It is implicit in this circumscription of her powers that she cannot investigate matters falling within the private sphere,” said the court.

But, the court said, it might not always be easy to determine what falls within the private sphere. In this case, the next question was whether the CR17 campaign fell under “state affairs”.

Here the court referred to an earlier Constitutional Court judgment, which looked at section 19 of the Constitution. This gives every citizen the freedom to make political choices, to form a political party and to participate in the activities of the party.

The Constitutional Court judgment said: “Section 19 of the Constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party. For good reason this is left to political parties themselves to regulate. These are internal matters of each political party”.

Based on this judgment, the high court said: “Clearly … the conduct of political party members in conformity with their party structures and in furtherance of their own personal party ambitions is squarely within the private domain.”

There was also no suggestion that these donations involved public funds, said the court. Nor has the state yet legislated to regulate internal party political funding. The CR17 campaign was also far bigger than the president, even though it had his branding.

The court said this characterisation of the campaign was backed by three of his team, and Mkhwebane had not put forward evidence to contradict it. “It was a campaign to further a particular ideological agenda within the ANC,” they said.

The court then looked in detail at what must be disclosed under the Executive Ethics Code, the Executive Ethics Act and the Constitution; and then compared this with the evidence — to see whether Ramaphosa had breached these requirements.

It found that Ramaphosa’s involvement in the CR17 campaign was as a member of the ANC and there was no overlap with his official duties.

The public protector had “before her … a full explanation as to how the CR17 campaign spent the money that it raised. This showed that it funded the entire broad-based campaign,” the judgment said.

There was no evidence or facts to substantiate Mkhwebane’s conclusion of a direct personal sponsorship. There was also no evidence of any direct financial benefit to him personally, the court said.

Counsel for the EFF, Vincent Maleka SC, had argued that even indirect benefits must be disclosed under the law as it stands. But, said the court, the way the law was drafted meant there needed to be some kind of quantifiable financial benefit to require disclosure.

Here, the indirect benefit was support for his candidature as president. “It was not a financial benefit upon which one could place the type of ‘value’ required to be disclosed,” said the court.

The court, however, left unanswered a crucial question: now that it had clarified what the law, as it stands, does and does not require in terms of disclosure, is the law constitutional? This was the narrow question that investigative journalists amaBhungane came to court to fight.

The judges agreed with amaBhungane that transparency and access to information were key tools to fight corruption. Politicians receive a tangible benefit from their political campaigns, and this leads to a risk of patronage and corruption, amaBhungane argued, and the court agreed.

But the court said this case was not the proper time or place for this fight. 

Court: ‘Leaked emails back president’

One of the strongest weapons in Busisiwe Mkhwebane’s arsenal in her fight with President Cyril Ramaphosa was emails — delivered anonymously to her — she said. The public protector said these showed that Ramaphosa knew much more about the donations to his CR17 campaign then he had let on.

Ramaphosa had said that, in general, he did not know who the donors were to the campaign and was deliberately kept away from the details. The emails — two of which were attached to Mkhwebane’s court papers — showed that campaign manager Donné Nicol had consulted Ramaphosa before approaching donors and asked him to contact others.

But the court found that, on the contrary, the emails supported Ramaphosa’s explanation of his “limited involvement in the fundraising activities in that they show no more than two instances in which, among other things, the names of potential donors were discussed with him”.

“These emails do not constitute a sufficient basis for the public protector’s rejection of the president’s explanation of the CR17 campaign and his involvement.”