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She detailed the movement of money between different accounts and ordered Ramaphosa to reveal the details of the donations and the names of the donors. He found that there was merit in the suspected money laundering, “a devastating finding for the president of any country,” said Ramaphosa’s other senior adviser, Wim Trengove SC.
The superior court annulled her report in its entirety and reprimanded her severely for some of her findings. The public protector, supported by the opposition Economic Freedom Fighters party, then petitioned the Constitutional Court to revoke the high court order.
The superior court had ruled that under the constitution and the Public Protector Act, the jurisdiction of the public protector was limited to state affairs and public administration, so it had no jurisdiction to investigate the # CR17 campaign, which was a matter party insider. Mkhwebane had also failed to demonstrate, on the facts, that Ramaphosa had directly benefited financially from donations from CR17, he said.
At the Constitutional Court, Mkhwebane’s lawyer, Muzi Sikhakhane SC, said that the higher court had taken too narrow an approach to “state affairs”. The state was not the same as the government, he said. A campaign by the vice president that was aimed at him ensuring the presidency of his party and, ultimately, of the country, was framed in “affairs of state,” he argued.
“This is the money that is given to an individual to compete with his colleagues in his party so that he can win,” Sikhakhane said.
When asked by the court if this would apply to members of the opposition party as well, Sikhakhane said yes, because he was someone looking to seize the levers of state power.
EFF’s lawyer, Ishmael Semenya SC, agreed.
He said the higher court “was wrong” when it equated state affairs with state organs. State affairs included elections and, in an electoral system based on party lists, must include the financing of internal party campaigns, he said.
But Ngcukaitobi argued that “state affairs” focused on the nature of the conduct, not necessarily the person who performed it. If the conduct was carried out by a private party, it must be involved in a public activity or using public funds to qualify as “conduct in state affairs.” State affairs did not include the internal financing of political parties.
He said the question for the court in a review case like this was not whether, in principle, there was a duty to disclose the internal funding of political parties. The question was whether Mkhwebane’s conclusions and how he reached his conclusions were rational; this depended on the facts of this particular case, he said.
He said that in this particular case, the CR17 campaign was an autonomous campaign, led by others and from which Ramaphosa deliberately stayed away. It was for the benefit of some 80 people who would be elected to the National Executive Committee of the ANC. None of the money came to him personally; in fact, it donated R31m to the campaign and then another R6.2m, of which only R21.5m were repaid as loans.
When these key elements of the campaign were presented to Mkhwebane as fact, “she completely ignored them.” Instead, he found that he had personally and directly benefited, he said.
While the court may think that there might have been some indirect benefit, it was your thinking and not yours they needed to assess.
The trial was reserved.
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