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President Cyril Ramaphosa (left). (Photo: Waldo Swiegers / Bloomberg via Getty Images) / Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Felix Dlangamandla)
President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane clashed through lawyers in front of the Constitutional Court on Thursday over the Ramaphosa campaign finance issue. While the Public Protector received sharp criticism from the Ramaphosa team, the president was also criticized for a confusing turnaround involving costs against amaBhungane.
Under pressure from questioning by the Constitutional Court, Public Protector Busisiwe Mkhwebane’s attorney, Muzi Sikhakhane, ended up disavowing much of Mkhwebane’s report on the financing of President Cyril Ramaphosa’s CR17 campaign.
“It may be” that Mkhwebane was wrong to detect money laundering in the movement of Ramaphosa campaign funds, Sikhakhane acknowledged. The head of the National Tax Authority (NPA) likely would not have ended up prosecuting Ramaphosa for money laundering, as Mkhwebane warned in his report, Sikhakhane admitted.
“I accept that by writing [the report] he may have gone further than he should have, ”said the defender.
He added that “he is not claiming that each and every aspect” of the report is “perfect.”
The report in question was being considered by the Constitutional Court on Thursday after the North Gauteng High Court sidelined it with scathing criticism in a March 2020 ruling. The Public Protector asks the country’s highest court for permission to appeal. .
At the heart of the matter is a November 2018 question asked to President Cyril Ramaphosa in Parliament by former Head of District Attorney Mmusi Maimane, who asked the President to account for a R500,000 payment apparently made by the CEO of the State Capture Bosasa company, Gavin Watson, to Ramaphosa’s son. Andile. In his reply, Ramaphosa said he was aware of the payment, which was for business done by Andile for Watson.
But a week later, Ramaphosa wrote to the Speaker of the National Assembly to explain that he had made a mistake. The payment in question went not to his son Andile, but to the campaign pushing for the leadership candidacy of the ANC of Ramaphosa, CR17.
Following a complaint filed with the Public Protector by the EFF, Mkhwebane wrote a report on the matter in which he determined that Ramaphosa had deliberately misled the National Assembly. She directed NPA Director Shamila Batohi to investigate possible money laundering related to the CR17 account, and President Ramaphosa to declare all donations made to her campaign.
It is this report, and associated corrective action, that the High Court struck down earlier this year, ruling that Mkhwebane had drastically exceeded his term.
For her, when observing the movement of money from different accounts, it was sufficient and reasonable to say: “I reasonably suspect that this movement of money warrants an investigation by the competent authority.”
Arguing on behalf of Mkhwebane, Sikhakhane on Thursday once again maintained that Ramaphosa’s position at the time of Bosasa’s pay – as vice president – “allows him to be investigated by the Public Protector.”
It was rational for Mkhwebane to refer her suspicions of money laundering to the head of the NPA, argued the defender.
“It was sufficient and reasonable for her, when observing the movement of money from different accounts, to say: ‘I reasonably suspect that this movement of money warrants an investigation by the competent authority.’
Judge Leona Theron noted that the Public Protector referred to Ramaphosa’s alleged money laundering as an offense under the wrong statute of law. Mkhwebane appeared to believe that money laundering was included in anti-corruption laws, when instead it is covered in the law by covering up the proceeds of criminal activities.
In other words, the Public Protector charged Ramaphosa with money laundering without apparently knowing what laws relate to money laundering.
It was a “minor mistake,” Sikhakhane suggested.
Turning to Mkhwebane’s finding that Ramaphosa “intentionally” misled Parliament initially about the R500,000 payment, the Constitutional Court judges asked Sikhakhane on what basis he reached this conclusion.
Sikhakhane replied that it was based primarily on the “certainty” with which Ramaphosa initially gave his reply to Parliament that the payment was for the services rendered by his son.
“If I steal his robe from the court and return it 10 days later because I feel remorse, that does not take away my intentional theft,” argued Sikhakhane.
In the documents presented by Ramaphosa’s legal counsel, it was indicated that the president would seek an order of punitive costs against Beetles if the appeal failed. Budlender told The Bench that this decision was inappropriate given the public interest nature of the requested order.
But Ramaphosa’s “certainty” was related to his son’s relationship with Bosasa, not CR17, Judge Zukisa Tshiqi said. Judge Tshiqi expressed concern about Mkhwebane’s conclusion in the report that it did not matter whether Ramaphosa’s first response to Parliament was in error or not.
“That worried me a bit,” Judge Tshiqi said.
Sikhakhane suggested that Mkhwebane was being “clumsy” in his use of terms like “deliberate” and “willful” when it came to Ramaphosa’s alleged deception of Parliament, but the judges seemed dissatisfied.
“The Public Protector is a lawyer, you are a lawyer, we are all lawyers and we know that those terms do not mean the same thing,” said Judge Rammaka Mathopo.
Appearing for Ramaphosa later that day, attorney Wim Trengove charged Mkhwebane with “errors so obvious and so glaring that no attorney acting in good faith would have made such errors.”
What the Mkhwebane report revealed, Trengove suggested, was “an unwise determination by the Public Protector to catch the president.”
Trengove noted, with regard to Ramaphosa’s initial incorrect response to Parliament on Bosasa’s donation of R500,000, that “the premise on which the President was asked to answer the question was that Mr Watson had paid R500,000 to the son of the president, and the president was asked to explain why.
It would have been much easier and less compromising for Ramaphosa to explain that it was a campaign donation rather than a payment to his son, had he known, Trengove suggested.
We believe that the idea that this is vexatious or frivolous litigation is a surprising conclusion.
On the Public Protector’s money laundering allegations, Trengove said that one of Mkhwebane’s staff members had interviewed an officer from the Center for Financial Intelligence who told him there was no evidence of money laundering.
“The evidence he had was that there was no evidence of money laundering,” Trengove said.
Ramaphosa’s lawyers have also argued that it is beyond the powers of the Public Protector to give orders to other state officials, as Mkhwebane did when he instructed the head of the NPA, Batohi, to investigate the president.
The Constitutional Court also heard an appeal from the investigative journalism unit Beetles, represented by attorney Steven Budlender, to declare the Code of Parliamentary Ethics incompatible with the Constitution. Beetles He argues that, in the future, executive members should be required to declare campaign donations related to internal party elections in the same way that they are required to declare other economic benefits annually.
Budlender described it as a “strange situation” in which gifts that exceed the value of R300 to the president must be disclosed, but a campaign contribution of one million rand does not.
There is a “pretty extraordinary disconnect between what should be disclosed and what shouldn’t,” argued Budlender.
“It is an extraordinary gap in a code designed to promote open and responsible government.”
In the documents presented by Ramaphosa’s legal counsel, it was indicated that the president would seek an order of punitive costs against Beetles if the appeal failed. Budlender told The Bench that this decision was inappropriate given the public interest nature of the requested order.
“The notion that this is vexatious or frivolous litigation is, we believe, a surprising conclusion,” said Budlender.
But it was stated later that day that Ramaphosa’s request for a punitive cost order against Beetles it had been abandoned, without explanation.
Budlender was not amused.
“That is not the way the president should litigate against NGOs,” he said, suggesting that other NGOs may have been intimidated into withdrawing their case due to the threat of the cost order.
After a long and exhausting day, the trial was reserved. DM
