The paper trail of donations to President Cyril Ramaphosa’s campaign to become president of the ANC is probably negligible compared with the tome Deputy Chief Justice Raymond Zondo will write on state capture. Still, those implicated are banking on it as a counterweight.
In less than a fortnight, the high court in Pretoria will hear argument from the Economic Freedom Fighters for the unsealing of the CR17 campaign funding records. The EFF is familiar with the contents, in as far as embattled public protector Busisiwe Mkhwebane controversially brought them to light.
It was party to the litigation between Ramaphosa and Mkhwebane over her report on the campaign, which saw the high court hand down one of several damning judgments that now form part of the case for her impeachment by parliament.
Mkhwebane was asked in 2018 to investigate Ramaphosa for misleading parliament when he responded to an opposition party question about the payment of R500 000 to CR17 by Bosasa as if the money was a consultancy fee earned by his son Andile. A few day later, the president revised his answer and confirmed it came to his campaign but added that he had not known of the donation because such was run at arm’s length.
Mkhwebane then exceeded her mandate by investigating the entire CR17 campaign and concluded that the flow of millions of rands to it raised suspicion of money-laundering, which must be investigated.
Moreover, she said, “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.
Last year, the high court in Pretoria set the report aside. It found that Mkwebhane had acted recklessly and irrationally and failed to process facts fairly.
The ruling put paid to Mkhwebane’s directive that the president must disclose all funding of the campaign to parliament. One of the grounds on which the court struck down the report and remedial action was that the public protector can probe executive actions involving public funds but the campaign, and intra-party funding, falls in the private domain.
But the case has spawned a sequel, at once legal and political. In filing her record of decision, Mkhwebane submitted bank statements reflecting financial transfers to Ramaphosa’s campaign effort.
The president’s lawyers in early August wrote to North Gauteng Deputy Judge President Aubrey Ledwaba asking him to seal part of the record that concerned “documents and/or information relating to the bank statements” of the campaign.
They said it reflected confidential third-party information and there was reason to believe that some of it may have been unlawfully obtained.
Notably, the legal team challenged Mkhwebane’s submission that she subpoenaed it from Standard Bank. The bank denies this.
The Financial Intelligence Centre (FIC) warned Mkhwebane that the information it released to her constituted intelligence and not evidence with which she could do as she pleased.
Ledwaba sealed the full record, pending an agreement between the parties on which part would remain so. In a letter dated 14 August, by which time there was still no agreement, he directed Mkhwebane to file her record to his office and not to the registrar as is the rule, on 15 August.
Mkhwebane promptly filed the record with the registrar.
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 did so in the initial litigation. But late last year, the party brought a separate application seeking to force the disclosure of the records of four bank accounts linked to Ramaphosa’s campaign, obtained from the FIC.
In court papers, it argues that this is in the public interest because secrecy about the funding that helped Ramaphosa to high office created a risk that he could be “captured”.
“Without knowing how private money influences our public life, the suspicion of corruption is greater. Transparency, openness and accountability act as a guard against this. Disclosure is the means to the end.”
In answering court papers, the president’s attorneys note that, despite Ledwaba’s instructions, the FIC report appeared to have been leaked to the media. The information now the public domain included emails showing that Ramaphosa was at times involved in soliciting donations, and hints that the funders included Greek shipping magnate Tony Georgiades, who contravened apartheid-era sanctions, and Sir Mick Davis, the former chief executive of Britain’s Conservative Party.
These emails were never part of the court record and how they came into Mkhwebane hands is a matter of easy political speculation.
The EFF says the bank records and related documents are part of her record of her decision in the initial review case, and should by default be open as per Rule 53 of the General Rules of Court.
But the FIC’s lawyers counter, with the president’s in full agreement, that the EFF cannot force the disclosure of the information because the party throughout the original case refused as much. It notes that at the time, the EFF never objected.
“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,” the presidency’s lawyers argue.
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 wrangle is playing out weeks after Ramaphosa signed into law the Political Party Funding Act. The EFF’s arguments for transparency in all forms of political funding have support from worthy quarters.
Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution, said there was a strong case to be made for broader transparency in intra-party donations and legal framework enforcing this on all parties, including the opposition.
The context of the story includes developments in criminal courts and before the Zondo commission, involving Ramaphosa’s political foes. On Tuesday, former Eskom chief executive Brian Molefe repeated his claim that the president’s former business partners and his backers in his bid for control of the ANC suggested he might be compromised.
Last week, the Zondo commission, which has taken an interest in Malema’s finances, heard that a forensic investigation into money flows in the VBS Mutual Bank scandal was near complete.
Political analyst Richard Calland said the funding’s facts were almost incidental in this attempt to create a new narrative for state capture evidence, this time with the president as the prime suspect. “It is not what is actually in the records … but to perpetuate the idea that Ramaphosa is himself ‘captured’ by white monopoly capital and to thereby distract from the real state capture perpetuated by the RET [“radical economic transformation”] brigade.”
Naidoo said Ramaphosa may be asked about his private funding. at the Zondo commission. “And if that happens, he will have to answer.”