/ 20 July 2021

EFF loses high court bid to unseal CR17 campaign records

Got the flag: Campaign money was spent on all sorts
The Pretoria high court on Tuesday dismissed with costs the Economic Freedom Fighters’s bid to force the disclosure of details of donations to President Cyril Ramaphosa’s campaign to claim the leadership of the ANC in 2017. (Delwyn Verasamy/M&G)

The Pretoria high court on Tuesday dismissed with costs the Economic Freedom Fighters’s bid to force the disclosure of details of donations to President Cyril Ramaphosa’s campaign to claim the leadership of the ANC in 2017.

Judge Cassim Sardiwalla held that he was unable to pinpoint any right on the part of the EFF or aspect of the interests of justice that warranted the disclosure of details of financial contributions to the campaign.

“The applicant has not advanced any public or private good that will be served by public disclosure as against the personal danger in which parties of the CR17 campaign concerned and their activities will be placed,” he said.

The judgment noted that at the time the closely-fought ANC leadership campaign played itself out the law compelling political parties to disclose funding donations had not yet been adopted. Nor did the principle underpinning it find wider application when it came to donations to those involved in contests within a particular political party, the judge said.

The EFF submitted that the Political Party Funding Act was signed into law in 2018 and that its principles should apply not only to parties but also the individuals within parties.

It argued that the constitutional right to make political choices was hampered by the lack of access to information on private campaign donations within political parties, in this case the CR17 donations. 

But Sardiwalla said section 19 of the constitution safeguarded the right to make political choices freely, and concerned the individual’s right to join a political party. 

“Therefore, I am of the view that the individual members of the applicant possess this right and not the applicant itself. That being said, the applicant has in any event failed to adequately state on the papers how its right under this section has been affected, if at all,” he said.

It was clear that the right to make political decisions related to knowing about political parties and their leaders and likely decisions.

“However, does this include knowing the private sources of rival political parties’ funding?” Sardiwalla said.

Further, the EFF contended that the right to privacy of those who donated was not unlimited but had to be weighed against the public interest.

But the Financial Intelligence Centre (FIC), the sixth respondent in the case, countered that it had insisted on confidentiality when it gave the information in question to public protector Busisiwe Mkhwebane in the context of her investigation into whether the president had misled parliament when replying to a question about his campaign funding.

The information was not part of the court record in a legal review of Mkhwebane’s adverse findings launched by Ramaphosa. Instead it was filed as part of her record of decision-making and ordered sealed by Judge Audrey Ledwaba, after the president requested that  “documents and/or information relating to the bank statements” of the campaign be protected.

The Financial Intelligence Centre insisted that the EFF had no right to the sealed information, while Ramaphosa’s counsel argued that it could only be used for the purposes set out in the Financial Intelligence Centre Act and that these were not brought into play by the application.

“I do think that there is a valid basis for further restriction of the protected FIC report,” the judge concluded.

“I can find no compelling reasons why the material should be disclosed to the public at large.”

Moreover, while some of the information in the FIC report was leaked, there was more in the records that was not in the public domain and still deserving of confidentiality protection.

The judgment also drew a distinction between what would be in the public interest as opposed to merely of interest to the public.

The ruling marks a considerable, if predictable, victory for a president who has been under pressure for years over accepting millions of rands from unnamed donors for his campaign. 

It is believed that some R400-million was spent and it has been a constant source of mud-slinging in the factional war within the ANC, with the president’s opponents accusing him of being beholden to capitalist interests.

In his recent failed high court bid to overturn his suspension as secretary general of the party, Ace Magashule argued that by accepting private funding for his campaign, Ramaphosa himself had breached the party’s guidelines and should also be suspended.

Mkhwebane had in her report concluded that the flow of millions of rands to the CR17 campaign raised suspicion of money-laundering, which must be investigated. 

On review, the high court found that she had acted recklessly and irrationally and failed to process facts fairly.  She appealed to the Constitutional Court and lost. In a judgment handed down at the beginning of this month, the court held that Mkhwebane had, possibly deliberately, misconstrued the Executive Ethics Code to reach a conclusion that had no basis in fact.