Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)
NEWS ANALYSIS
The adage “hard cases make bad law” could have been coined with public protector Busisiwe Mkhwebane in mind, although in the CR17 face-off between her and President Cyril Ramaphosa, it is the politics of the case, rather than the law, that makes it particularly hard.
Mkhwebane’s report — released in July last year — was initially expected to deal with a single donation to Ramaphosa’s campaign for election as ANC president at the party’s 2017 Nasrec elective congress. The complaints — by then Democratic Alliance leader Mmusi Maimane and the Economic Freedom Fighters’ Floyd Shivambu — centred around how Ramaphosa had answered a parliamentary question related to a R500 000 donation from Bosasa’s Gavin Watson (who has since died) and a contract between Bosasa and Ramaphosa’s son, Andile.
Bosasa, now African Global Operations, had been alleged to have been mired in corrupt dealings with the government. But when Mkhwebane released her report, she revealed that she had investigated the whole CR17 campaign, stretching back to almost a year before Watson’s donation.
She found that Ramaphosa had misled Parliament and, after detailing some of the donations, said he breached his obligations under the executive ethics code and should have disclosed the donations. Mkhwebane’s preliminary view was that “such [a] scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these monies to the campaign”.
Included in her remedial action was a direction to Parliament to demand that Ramaphosa disclose all his donors and the amounts they donated. She also directed the National Prosecuting Authority (NPA) to “take note” of her report and “conduct further investigation into the prima facie evidence of money laundering as uncovered during my investigation” and then report back to her.
Ramaphosa immediately challenged the report in court, contending that it was flawed in a series of respects. This week a full bench of the Pretoria high court will hear arguments from all the parties.
High stakes for both parties
There is much at stake for both Ramaphosa and Mkhwebane. Already the sheer amount of millions raised to get Ramaphosa and his slate into power has left South Africans open-mouthed. The actual number of millions remains unclear — Ramaphosa said Mkhwebane double counted a number of times — but it is a lot. If Mkhwebane succeeds in persuading the court that Ramaphosa has a duty to disclose the identity of all his donors and the amount of their donations, it would be a gift to Ramaphosa’s critics inside the ANC and to opposition parties.
For Mkhwebane, there is even more at stake. From the legislature, she is facing an impeachment process. From the judiciary, she has had an even more torrid time. She has not lost every case, but she has lost most of them. Worse than the losses have been the scathing rebukes she has received from the courts — including the highest court, which has questioned her integrity and honesty. Then there have been the revelations by former employees, shoring up the view that the public protector, now more powerful than ever after the Constitutional Court’s Nkandla judgment, has been “weaponised” to undermine Ramaphosa’s government.
The dispute — polite at first — has become increasingly bitter. In heads of argument, her counsel Muzi Sikhakhane SC said Ramaphosa’s application “is an attempt to create a sense of impunity for the president and to assert that he is above the applicable law”.
Donations, donations, donations
Ramaphosa’s team has not minced words either. In heads of argument, Wim Trengove SC said: “Her unlawful investigation of all the donations was malicious. [Her] finding on the suspicion of money laundering was entirely baseless; it reinforced the inference of a reckless determination to malign the president.”
Ramaphosa’s team will argue that the public protector’s investigation into the CR17 campaign was unlawful because it waded into areas outside her jurisdiction. A campaign for internal political party elections does not fall into the remit of the public protector who is confined to investigating conduct related to state affairs or public administration, said Trengove in his written argument.
Neither the parliamentary code for MPs nor the Executive Ethics Act required Ramaphosa to disclose the donations, he said. On this he is supported by the speaker of the national assembly.
Mkhwebane’s team will argue that the public protector does have jurisdiction because the Constitution and the executive ethics code empowers her to investigate whether a person has exposed themselves to a risk of a conflict of interest — between their official duties and their private interest. The code for MPs required that Ramaphosa disclose any “benefit of a material nature”, said Sikhakhane.
“The donations were for the advancement of his own individual political career. The ANC has not confirmed his contention that CR17 was a party programme for renewal,” said Sikhakhane.
Investigative journalist unit AmaBhungane has also entered the fray — on a narrow legal issue. It will argue that, if the court finds there was no duty to disclose the donations under the executive ethics code, the code is unconstitutional and, going forward, such disclosures must be made.
The court will also hear argument on whether Ramaphosa deliberately misled Parliament and whether there is rationality in Mkhwebane’s observation — she said in her report that it was not a finding as such — that there was “merit” in a suspicion of money laundering.
NPA defends its independence
The case has also drawn in national director of public prosecutions Shamila Batohi. Mkhwebane’s direction that the national director of public prosecutions investigate whether there was money laundering and then report back to her with an implementation plan for her approval prompted Batohi to enter the case.
In heads of argument, Batohi’s counsel, Timothy Bruinders SC, says: “Powers of direction and monitoring over the NPA by the PP [public protector] would blur the constitutional distinction between the two constitutional institutions.”
The money-laundering observation was one of the most eye-popping aspects of Mkhwebane’s report and, for some weeks, there was intense speculation about where Mkhwebane had accessed the bank records of Ramaphosa’s campaign. This was because it was clear from her report that she did not successfully manage to subpoena all the banks.
She answered that the records came from the Financial Intelligence Centre (FIC), even putting its report into the (sealed) court record. This has meant that the FIC, which normally operates in closely guarded confidentiality, has entered into the court case as well.
After questions by the president’s lawyers about why the FIC examined so many of the donations and over the period it did, the FIC explained that it was simply “following the money” of the Bosasa donation — as per global best practice. However the FIC also said that it could find no evidence of money laundering, because it could not establish a “predicate offence”. A “predicate offence” refers to the suspected crime from which the laundered money was sourced.
This was qualified though — the FIC said it did not have investigative powers to investigate whether there was such a predicate offence. However, it seems that Mkhwebane’s team did not investigate further either, rather giving this job to the NPA.
The case is scheduled for Tuesday, Wednesday and Thursday and will be heard by Gauteng Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley.