Legal counsel for the Economic Freedom Fighters on Tuesday told the high court in Pretoria that President Cyril Ramaphosa could not divorce his campaign to become president of the ANC from electoral law, and keep the funding that flowed to it secret, because his ultimate purpose was the highest public office.
Advocate Ishmael Semenya SC argued that Ramaphosa’s stance that the donations to the campaign were private and that documents detailing the money flow obtained by Public Protector Busisiwe Mkhwebane should remain sealed, was not tenable.
He referred to conversations on record in which Ramaphosa told both his family and Mkhwebane that he had understood that becoming party leader would lead to becoming state president.
“I never thought it was to my direct benefit, and it was kept away from me, anyway,” the president told the public protector.
“It was just for the campaign in the ANC and not for the republic, although that would happen as it did.”
This quote vindicates the point, Semenya said, that both the president and his campaign managers knew that while they were seeking donations to advance his position in the party, that it would ultimately translate into the public office.
Ramaphosa had submitted that he was elected as president by the National Assembly but, Semenya noted, he arrived there through an electoral process enshrined in law, and by virtue of his position on the ANC’s list.
“That office could only be assumed, as we point out, by the constitution itself, as well as by the Electoral Act,” Semenya said.
Hence, the argument that there was a difference between political-party and intra-party funding was an artificial and flawed one here, he argued.
“That is not an adequate ground to resist the disclosure of all this information.”
Semenya recalled the ruling of the Constitutional Court in the My Vote Counts case, which held that transparency of private funding of political parties promoted both the detection of improper influence on public office bearers and the fight against corruption.
That judgment led to the recent enactment of the Law on Private Party Funding Act, which requires disclosure of donations to parties.
Connecting the dots …
Semenya said the fact that two of the administrators of the CR17 campaign had since become advisers in Ramaphosa’s presidency begged the question: “Are there any other dots to be connected?”
The bank records of the campaign were obtained by Mkhwebane from the Financial Intelligence Centre (FIC) in the course of her investigation into a complaint that Ramaphosa misled Parliament on a donation from Bosasa to the CR17 campaign.
In August last year, Mkhwebane filed the bank records with the registrar of the high court, in defiance of an order by Deputy Judge President Aubrey Ledwaba that the record be filed to his office.
Ledwaba then directed that the record be transferred to his office, that the FIC report remain sealed and that any party who wished to challenge this should do so in court. Neither Mkhwebane nor the EFF initially did so.
But late last year, the party launched this separate high court bid to force the disclosure of the records of four bank accounts linked to Ramaphosa’s campaign.
Semenya’s co-counsel, Kameel Premhid, argued that bank records reflecting donations to the campaign were part of the court record filed in terms of rule 53 of the Uniform Rules of Court and should by default be open to scrutiny.
He questioned why the applicants bore a reverse onus to show that the default position be restored.
“The facts have not overtaken the circumstances … we are squarely in rule 53 territory,” he argued.
But the legal teams for the president and the FIC counter in their papers that the bank records were never part of the court record.
Instead, they were part of Mkhwebane’s record of decision, and the FIC had warned her that the information was intelligence, not evidence — and that she could not do with it as she pleased.
The FIC’s lawyers argue, with Ramaphosa’s in full agreement, that the EFF cannot force the disclosure of the information because this much was refused throughout the original litigation over Mkhwebane’s report.
As put by Ramaphosa’s lawyers: “The information can only be disclosed for the purposes set out in the FIC Act. The EFF does not bring itself within the Act. This really should be the end of the matter.”
It is preposterous, they add, that the EFF should portray itself as seeking to hold the president to account when constitutionally this responsibility resides with parliament. The court bid comes amid growing pressure on Ramaphosa from his political foes over his campaign donations, which they claim make him beholden to capitalist interests.