South Africa


Ramaphosa hits back at Mkhwebane, setting off a major legal battle

Aides deny Public Protector Busisiwe Mkhwebane, right, is upping the ante in a campaign against President Cyril Ramaphosa, left. (Image sources: EPA-EFE / Nic Bothma / Gallo Images / Phill Magakoe)

The Public Protector’s finding that President Cyril Ramaphosa is in breach of various codes for the funding of his ANC leadership campaign is going to set the legal cat among the political pigeons. As always with this form of lawfare, there are battles being played out in two courts, the one in which judges rule, and that of public opinion. Ramaphosa has now published the response that he gave to Advocate Busisiwe Mkhwebane’s preliminary findings against him. It is a robust response for both courts. But some of what he says may simply not hold up. Despite that, the finding that she makes that a claim of money laundering against him must be investigated is probably not sustainable and will fall away in the longer run.

To oversimplify Mkhwebane’s findings against Ramaphosa, he received money from various sources, including Bosasa’s CEO Gavin Watson for his ANC leadership campaign. This was money for him, and from which he benefitted. He was a member of the executive (as Deputy President and an MP at the time) and thus he should have declared this money. He did not. Also, the way the money ended up in his account may amount to money laundering and thus the National Prosecuting Authority must investigate.

Media Briefing 19072019

The Presidency says that Mkhwebane did not take his version of events into account when making these findings. In other words, she simply ignored what he said. The Presidency has now published the response prepared by his lawyers that they say she ignored.

The President’s Response to the Public Protector

Perhaps the most important point that they make, again and again, was that Ramaphosa simply did not know what payments were made and who made them. For them, the CR17 campaign was not just about Ramaphosa, it was about the ANC, and received money from people who were ANC members, supporters, or just people in society. In other words, it was about the renewal of the ANC, and not just Ramaphosa. They quote extensively from various publicity material from the campaign to justify this then.

In the case of the donations, they say that “The donations were made to CR17 (the campaign) and not to him. It owned the money and he did not. He never received any of it. The money was spent on the campaign for his election but that was not its only cause.”

In other words, the money was not his, and if it was not his, it was not to his benefit, and there was no duty to declare.

Related to this is perhaps the strongest argument made by Ramaphosa, that if “the Public Protector were to censure the President for his failure to do so (to declare the donation)… the Public Protector would then also have to extend her investigation, in pursuance of her constitutional duty of impartiality, to all other politicians who failed to disclose the donations made to their party political campaigns”.

So then, if Mkhwebane finds Ramaphosa guilty of receiving money for an internal leadership campaign, then Jacob Zuma is guilty of not doing the same, and Mmusi Maimane and Julius Malema of not declaring any funds used for their leadership campaigns (such as there was any contest in the EFF…), and so on.

This is a strong argument. It would appear to show, on Ramaphosa’s version, that Mkhwebane is simply being less than neutral in this investigation. And it’s well-known that there have been leadership campaigns like this before. Certainly, it would mean that former President Jacob Zuma would have had to declare any money he received for his leadership campaigns of 2007 and 2012, and those were not cheap.

There are two related points to make here that might get a little finicky with the lawyers.

The obvious person to point to in this case is now Monitoring and Evaluation Minister Nkosazana Dlamini-Zuma, whose Nasrec campaigns was also obviously well-funded.

However, Ramaphosa was a member of the executive, as Deputy President, in 2017. She was not. This means that a higher duty to declare may apply to him.

For those of a historical bent, it might be important to examine what it could mean for other people. In 2007 Jacob Zuma campaigned against then-President Thabo Mbeki. Zuma was not a member of the executive (he had been fired as Deputy President) and so may not have had to declare. But Mbeki was President, and did not declare. In 2012 Zuma was a member of the executive when he campaigned against then Deputy President Kgalema Motlanthe. None of them declared.

Which means that if Mkhwebane’s findings are to be applied in this way, then surely Mbeki, Zuma and Motlanthe must be in violation of it, at the very least.

While the lawyers will argue about this in a judge’s court, in the court of public opinion, Mkhwebane may well be vulnerable to this argument, in that she has made no finding against any other politician apart from Ramaphosa.

Omnipresent in the Ramaphosa’s lawyers’ argument is a complaint about her overreach, and a decision to investigate the total funding of CR17. For them, this shows that she is not acting neutrally. It is a vitally important point. It is because of this decision, to investigate further than just the narrow complaint about the R500k Bosasa donation that so much more information has emerged.

Mkhwebane says that in total, with evidence from those who worked on the CR17 campaign, around R200-million was spent. This is an interesting figure, it shows how these campaigns actually work, and how money flows.

But it is also not surprising at all. The current public expert on most things Ramaphosa (or probably actually all matters Ramaphosa) is Professor Anthony Butler. In his updated biography of the President, the chapter on Nasrec is called “The Billion Rand Election”. It was always known that much money had changed hands.

The nature of Nasrec was that, in the end, it came down to one single point: Ramaphosa won a billion rand patronage election against an incumbent who appeared to have access to government money (for those who doubt this, it is worth looking at how, for example, then-Police Minister Fikile Mbalula was allegedly involved in trying to procure a “grabber”, there have been claims that SASSA events were planned to move money around just before the conference, etc).

In the court of public opinion, this means that this point may not matter that much, voters surely know that this was the case.

At the same time, on the issue of overreach, Mkhwebane quotes from case law to support her decision to investigate the donations in their entirety. The case she uses is the Oilgate case, in which judges did rule that a Public Protector must investigate wrongdoing if there is a suspicion of it, and should not be limited to just a complaint. So if a Public Protector is probing a complaint and comes across other possible wrongdoing, she does have a duty to investigate further.

However Ramaphosa’s lawyers may well weaken her case with a point about the facts here, with claims that some of the money she says was paid out of accounts doesn’t add up, because the facts are incorrect.

To add to their argument, over the weekend it emerged that ABSA has denied that they received a subpoena from the Public Protector’s office to hand over information about payments to an account linked to the campaign. Mkhwebane claimed on Friday that ABSA has refused to comply with such a subpoena. This might be used against Mkhwebane, in that her opponents could claim that she is making false claims.

Then there is the claim that Ramaphosa may have been involved in money laundering because of how this money, the Bosasa donation was paid. Here, his lawyers make hay:

The suggestion of a suspicion that the president may in some unspecified way have been involved in money laundering is absurd. It is based entirely on the fact that Mr Watson apparently routed his donation to CR17 via a private company. The Public Protector apparently did not even ask Mr Watson why he had done so. But, whatever his explanation, the President, in any event, did not even know of the donation or its pedigree”.

Here they are pointing out that Ramaphosa could simply not have had any knowledge of how the payment was made, why would he? But they are also suggesting that Mkhwebane did not act in the way she should have, by not asking Watson why he made the payment in this way. In other words, she was perhaps protecting him.

Their claim of unfairness is taken further on the issue of whether or not Ramaphosa would be allowed to cross-examine Watson.

Ramaphosa’s lawyers say when they made the request, they received communication that led them to believe they would be able to do this. Then, they complain that they read in the City Press newspaper that she had decided he could not cross-examine Watson. This was, they say, surely not correct. They are also disturbed by the fact she did not ask Watson why he paid the money in this way, they appear to be impugning her motive in this area.

So, after the finding and the response, what’s next?

Obviously, Ramaphosa’s enemies will use this against him. At some point there could well be the publication of a list of people and companies who funded his campaign. His opponents will claim that actually he is the captured one, to the benefit of Zuma, ANC Secretary-General Ace Magashule and others, even though there must have been a similar account for the Nkosazana Dlamini Zuma campaign.

Ramaphosa is likely to lodge a court challenge to the findings of this report in its entirety, which will buy him legal time. Politically, he and his supporters will claim that Mkhwebane has a political motive. In the meantime, this report may make it impossible for the ANC in Parliament to attempt to remove her, as it will look as if he is removing a Public Protector just because she made findings against him.

On Monday the Constitutional Court will deliver its much-delayed decision on whether to uphold a punitive costs order against her in the Absa case. This will be important for her standing in public.

Then there is the one person who is simply silent at the moment. David Mabuza, the Deputy President. There has been no comment from him on any political matter of substance for some time. It still seems unlikely that Ramaphosa will resign or be forced from power, simply because it may be so difficult for Mabuza to be accepted as the leader of the ANC, and thus as President.

And for the moment, there is no obvious successor.

The balance of power has, again, swung away from Ramaphosa and towards his opponents. But that swing is not yet decisive, and it could easily move back with some action from say, the National Prosecuting Authority on other cases, or more testimony at the Zondo Commission. DM

Further reading (and it is recommended that both documents be read in this case to remove any over-simplifications above):


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