Home South African Concourt dismisses public protector’s appeal over CR17 campaign bank statements

Concourt dismisses public protector’s appeal over CR17 campaign bank statements

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The appeal by Public Protector Busisiwe Mkhwebane on whether she had the scope to investigate President Cyril Ramaphosa’s 2017 CR17 ANC campaign and related bank statements was dismissed by the Constitutional Court. #CR17bankstatements #Ramaphosa #Publicprotector

Public Protector Busisiwe Mkhwebane releases the report on investigations into financial corruption and planning for Nelson Mandela’s funeral. Photo: Screengrab/African News Agency(ANA)

Cape Town – The Constitutional Court on Thursday handed down judgment in the case relating to whether the Office of the Public Protector had the scope to investigate President Cyril Ramaphosa’s 2017 CR17 ANC campaign and related bank statements.

The court had to rule on whether Ramaphosa misled Parliament in relation to donations made to the CR17 campaign, and if the public protector had the scope to investigate the campaign.

The appeal by Public Protector Busisiwe Mkhwebane was dismissed. Justice Chris Jafta decreed that Ramaphosa did not wilfully mislead Parliament. However, the matter has been remitted to the High Court for the amaBhugane complaint. Ramaphosa has to pay these costs.

Mkhwebane, the EFF and the amaBhungane Centre for Investigative Journalism took their fight for access to the financial records of Ramaphosa’s CR17 campaign to the Constitutional Court.

In March last year, a full bench of the high court – which included Judge President Dunstan Mlambo, judges Keoagile Matojane and Raylene Keightley – reviewed, declared invalid and set aside Mkhwebane’s decision to investigate and report on the CR17 election campaign.

The documents were sealed in 2019 after Ramaphosa approached the North Gauteng High Court, arguing that Mkhwebane had allegedly obtained the documents illegally.

In a report in which Mkhwebane made an adverse finding against Ramaphosa, she found that the president had lied to Parliament when he responded to a question on a R500 000 donation made to his 2017 ANC presidency campaign by the controversial Bosasa group.

During the application, the EFF said the documents remaining sealed would encourage corruption.

On Thursday, Justice Jafta first read out the legal framework within which the case arose. He also recounted Ramaphosa appearing before Parliament in 2018 while answering an official question from Mmusi Maimane – then DA leader – about funds received for the CR17 campaign.

Maimane asked Ramaphosa if he knew anything about these funds received by his son, Andile Ramaphosa, from Bosasa.

Justice Jafta recounts that although Ramaphosa was not obliged to answer on the spot, he did so. Ramaphosa disputed that he was obliged to disclose the duties. He also said the donations were not to him directly, but to the campaign.

Mkhwebane asked the CR17 fund managers for details of all donations, but they only gave her info on the Bosasa R500K donation as they said other donations were not relevant to the matter.

The managers told her Ramaphosa was not involved in raising donations and how they are spent. Ramaphosa had previously reiterated at the Zondo commission that he was not privy to all details on fund raising.

He also said the donations were not for him directly, but to the campaign. Mkhwebane asked CR17 fund managers for the details of all donations, but they only gave her information on the Bosasa R500k donation as they said other donations were not relevant to the matter.

Gavin Watson confirmed the money was paid on his instance but that it was a donation to the campaign. He said he was approached by one of the fund managers for a donation.

Emails were anonymously delivered to her office but she couldn’t verify the authenticity of them

Managers told her Ramaphosa was not involved in raising donations and how they are spent – Ramaphosa had previously reiterated at the Zondo commission that he was not privy to all details on fund raising.

The public protector found Ramaphosa did mislead Parliament. Mkhwebane also found that Ramaphosa used his position to solicit funds, but this was not within her jurisdiction to investigate, said Justice Jafta.

She proceeded to find on whether he personally benefited and concluded that by failing to declare, he breached paragraph 2 of the Ethics Code, which was also not within the scope of the probe.

Ramaphosa, the National Prosecuting Authority and the national police commissioner then launched an application to challenge the report.

Justice Jafta says Mkhwebane changed the wording of a paragraph to include that Ramaphosa deliberately misled Parliament. On the basis on the changed quote, she concluded he deliberately misled Parliament because he did not give a well-informed response.

The justice says she was wrong in doing this, as what she did went beyond the parameters of interpretation. Justice Jafta says Mkhwebane did not have the authority to probe matters outside the complaint lodged. Mkhwebane is not empowered to probe private funds of political parties as it is not a state affair.

There is no evidence of money-laundering as the funds only passed through one account and not any other intermediaries. Mkhwebane had no authority to make remedial findings on the Speaker of Parliament, the NPA head and the national police commissioner.

The Concourt found that the High Court had erred in declining amaBhungane’s complaint.

Mkhwebane, the EFF and the amaBhungane Centre for Investigative Journalism took their fight for access to the financial records of Ramaphosa’s CR17 campaign to the Constitutional Court.

In March last year, a full bench of the high court – which included Judge President Dunstan Mlambo, judges Keoagile Matojane and Raylene Keightley – reviewed, declared invalid and set aside Mkhwebane’s decision to investigate and report on the CR17 election campaign.

The high court found that Mkhwebane had no jurisdiction to investigate the complaints lodged by former DA leader Mmusi Maimane and EFF deputy president Floyd Shivambu as well as the CR17 campaign and its donations.

In an affidavit dated July 27, 2020 and filed by Ramaphosa’s lawyer, Peter Harris of Harris Nupen Molebatsi Attorneys, the president stated that the issues amaBhungane seek to ventilate in the apex court were not decided at the high court because the centre elected not to enter into the debate regarding the proper interpretation of the Executive Ethics Code.

According to Harris, amaBhungane’s reasons for asking the ConCourt to entertain its application are without merit and mutually destructive.

He told the court amaBhungane were wrong to claim that the high court found that the Ethics Code did not require the disclosure of donations made to intra-party campaigns such as the CR17 campaign.

At the high court, the EFF applied for leave to appeal the full bench’s judgment to the Supreme Court of Appeal.

In an affidavit filed by its leader Julius Malema in May, the EFF insisted that Mkhwebane had the requisite jurisdiction to investigate the CR17 campaign as Ramaphosa has a duty to avoid the risk of conduct placing him in a conflict of interest.

Ramaphosa has also stated that, until the ConCourt rules on Mkhwebane’s appeal application, he will not consider suspending her – pending the Parliamentary inquiry into her fitness to hold office. This morning’s ruling will therefore have potentially significant implications for the Public Protector – who has challenged the constitutionality of the rules governing her impeachment inquiry – remaining in office.

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