Next week, the Constitutional Court will hear the next round in the battle between Mkhwebane and President Cyril Ramaphosa, who maintains that the public protector had no jurisdiction to investigate the donations made to his successful bid for the ANC presidency.
In her report, Mkhwebane found Ramaphosa had deliberately misled parliament when he answered a question from the Democratic Alliance’s then-leader Mmusi Maimane about a R500 000 campaign donation from Bosasa’s Gavin Watson. But Mkhwebane dug even further, investigating the whole #CR17 campaign for money-laundering.
The apex court hearing comes in the wake of efforts by Mkhwebane to stave off impeachment proceedings.
Joining in on next week’s action — as a detached bystander to the main event — is investigative journalism organisation amaBhungane, which will argue that members of the executive are obliged to disclose donations made to them or their political campaigns.
The organisation’s application seeks to get a ruling on its previously deferred question on the constitutionality of the executive ethics code, which the public protector argued the president had breached.
In March, the Pretoria high court found otherwise, concluding that the ethics code “does not require disclosure of indirect benefits to members of the executive in the nature of party-political campaign donations”.
But amaBhungane argued that, if this is the case, the law is unconstitutional.
The high court did not make a finding on this question, surmising that the constitutional challenge was misplaced. “That is an argument for another day,” the judgment reads.
The court did, however, indicate that the issues raised by amaBhungane “are critical to our democracy”.
“There are sound reasons for why the public should have easy access to funding information …” the court added. “However, this is not the case in which the constitutional implications of these issues could be fully ventilated.”
In its Constitutional Court submission, amaBhungane reiterates that “the connection between money and the risk of corruption is clear”.
“When these private contributions to public servants are not disclosed … the risk grows considerably. If politicians know they can operate without the scrutiny brought by an effective watchdog system, they may be more likely to take advantage of the spoils of public office …” counsel for amaBhungane, Steven Budlender SC, contends in his heads of argument.
Budlender goes on to argue that the constitution requires the state to tackle corruption. “Given that access to information is a key corruption-fighting tool, this includes enacting a code that may serve as a shield against potentially corrupt acts by requiring disclosure.”
He further contends that neither the constitution nor the Executive Ethics Act contemplates the exclusion of donations made to campaigns for positions within political parties. These types of donations, Budlender says, produce a tangible benefit for the politicians concerned.
“This is of considerable significance and benefit, particularly in our political system whereby the leader of the majority party in parliament almost inevitably becomes the president and whereby senior office-bearers in the majority party almost inevitably receive influential and powerful positions in the cabinet.”
But the president will argue that amaBhungane’s application to the Constitutional Court is irregular.
“The high court declined to decide the issues raised by amaBhungane because they were irrelevant to the main application,” Ramaphosa’s attorney, Peter Harris, says in an affidavit.
The president is seeking costs against amaBhungane, which Budlender calls “astonishing”.
amaBhungane’s application seeks to make the Constitutional Court a court of the first instance, Harris contends. The high court did not decide on the merits of amaBhungane’s application and, therefore, he adds, there is no decision to appeal.
Harris later says that if ama-Bhungane were to get away with the irregularity of its application, it still could not demonstrate that the constitution requires the ethics code to impose an obligation on members of the executive to disclose political campaign funding. amaBhungane’s application is “manifestly inappropriate and is an abuse of the court process”, he concludes.