President vs Public Protector

Mkhwebane “unilaterally expanded the scope of her investigation”, miscalculated hundreds of millions, states Presidency

By Ferial Haffajee 21 July 2019
Caption
President Cyril Ramaphosa (Photo: Jaco Marais)

The EFF, the DA and other parties do not have to reveal who donated to their internal or other political campaigns – only President Cyril Ramaphosa must do so, says Public Protector Busisiwe Mkhwebane.

Mkhwebane ruled that the National Assembly Speaker Thandi Modise must within 30 days compel President Cyril Ramaphosa to reveal the donors to this campaign to become ANC president in 2017 in her report released on Friday, July 18.

She has found that, as then deputy president, Ramaphosa was an MP and bound to declare benefits in the parliamentary register of members interests.

But she will not compel other parties to do the same, leading to suggestions that she is biased.

On Friday, July 18, Mkhwebane ducked and dived when asked if her ground-breaking ruling that Ramaphosa must make public his political donors applied to other parties.

I am not investigating politicians at large. What I am trying to reflect or show is that there was a lot of money (donated). How do you (the donors) donate so much money? Because what are your expectations out of that?” said Mkhwebane who found that Ramaphosa had misled parliament, had violated the Executive Ethics code and may be party to money-laundering for the money that flowed in and across three accounts linked to his 2017 campaign.

Under the Executive Ethics Act, I don’t have jurisdiction over MP’s,” said Mkhwebane. The Public Protector is the guardian of the Executive Ethics Act and breaches are adjudicated by the office.

Setting the cat among the EFF, DA pigeons

If Mkhwebane applied her ruling to all political parties, it would set the cat among the pigeons as neither the EFF nor the DA, both of which are a party to the complaint against Ramaphosa, support transparent political party funding laws. EFF President Julius Malema has said while the party will abide by forthcoming political party funding legislation, he opposes any transparency in personal donations.

This is likely because he has a number of wealthy patrons, the most well-known of which is the cigarette kingpin Adriano Mazzotti, who is also Malema’s landlord in his swish home in Johannesburg.

The DA has also historically refused to reveal its donors although the party has welcomed Mkhwebane’s finding; it is a well-oiled and well-funded machine.

You must understand the parameters of the law. The President was the deputy president. The complaint was not lodged against those (other parties). It should be clear that I am not investigating parties or political parties,” said Mkhwebane.

Mkhwebane miscalculates CR17 donations by hundreds of millions

Meanwhile, Ramaphosa’s response to Mkhwebane’s initial findings released by the Presidency on Friday reveals that she may have miscalculated the funding by hundreds of millions of Rands; that she got the opening dates of the accounts wrong and that she did not take account of inter-account transfers and interest payments in making her calculations.

  • In the trust account EFG2 held at Absa, the Public Protector says an amount of R191-million was deposited into the account (it was in fact R182-million, says the Presidency)

  • A total of R252-million was paid into the Ria Tenda Account (a fund-raising account) not R388-million as alleged by the Public Protector. This is because Mkhwebane double-counted by not tracking interest payments and the effects of transferring into and out of a money-market account.

  • The CR17 campaign used a company called Linkd for administrative, financial and other logistics services (paying salaries, making travel and other arrangements.). The total received into this account was R308-million, not R441-million as stated in Mkhwebane’s report.

In addition, the report reveals that Ramaphosa was one of the biggest donors to his own campaign and that two of the campaign managers made large personal donations too.

  • In the early stages of the campaign between September 2015 and May 2016, he contributed start-up costs of R200,000.00

  • In January 2017, he donated R1-million

  • In September 2017, R5-million

  • In November 2017, R20-million

  • In December 2017, 10-million

  • In July 2018, 1-million

The President was generally not aware of the donations, except for his own donation as well as the contributions of James Motlatsi (former NUM leader and campaign strategist) Sifiso Dabengwa (former MTN CEO and campaign strategist) and Donné Nicol (former CEO of the Shanduka Foundation which became the Cyril Ramaphosa Foundation and now an advisor to the President).”

The Presidency’s response to Mkhwebane, which she seems to have largely ignored, reveals that he is likely to take her finding on review, which will also require that he interdict Mkhwebane, Modise and also Shamila Batohi whom Mkhwebane directs to begin investigating money-laundering related to the campaign donations.

Ramaphosa’s lawyers say Mkhwebane “unilaterally expanded the scope of her investigation” and that he did not mislead parliament with regard to a R500,000.00 donation to his campaign (in fact, it says he self-corrected to the legislature).

The President was not required, by the Executive Ethics Code, to declare the donation to CR17. The Code only requires members to disclose their own financial interests and those of their children. The donations to CR17 belonged to the campaign and not the President.”

Ramaphosa’s lawyers say “The suggestion of a suspicion that the President may in some unspecified way have been involved in money laundering is absurd.”

As Mkhwebane’s report seems destined for a High Court review, it is likely the President will argue that her investigation was unlawful:

The President does not accept that the Public Protector has jurisdiction to investigate the CR17 campaign and to make any findings in relation to it. …The Public Protector Act limits the powers of the Public Protector to investigating matters which concern public administration and the improper exercise of public or statutory powers. The CR17 campaign and its fund-raising operations do not concern public administration or the exercise of public or statutory power.” DM

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