EFF APPEAL

EFF in court bid to support Public Protector’s challenge of flawed CR17 campaign report

By Marianne Thamm 23 April 2020

Economic Freedom Fighters (EFF) leader Julius Malema (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla) / President Cyril Ramaphosa EPA-EFE/KIM LUDBROOK

‘Absurd’ is how President Cyril Ramaphosa’s legal team have termed the EFF’s approach to the Supreme Court of Appeal to overturn a Pretoria High Court finding that the Public Protector’s report into the CR17 campaign was legally and factually flawed.

While Public Protector Busisiwe Mkhwebane has turned to the Constitutional Court to challenge the scathing July 2019 ruling by the North Gauteng High Court setting aside her report into CR17 campaign donations, the EFF has approached the Supreme Court Of Appeal with regard to the same matter.

It was Gauteng Judge President, Dunstan Mlambo, who in March 2020 overturned and set aside Mkhwebane’s CR14 report, describing it as “legally and factually flawed”, while the public protector herself had been “irrational and reckless”. The public protector was also ordered to pay punitive costs.

Responding on 20 April 2020 to the EFF’s application to the SCA on 25 March 2020, Ramaphosa’s legal team said that the party argued its case “as if this is an appeal and not a review”.

The EFF had applied to the SCA for leave to appeal “based on arguments which were not advanced in the main application, on factual conjectures, and trivial disagreements with the findings of this Court”, the president’s lawyers said in court papers.

While the EFF had not been cited in the main application and did not seek its own relief, the application to the SCA sought to “shore up the public protector’s defence of her report”.

In so doing, the EFF had added “no new facts, nor could it. Instead, it relied entirely on the facts pleaded by the public protector.”

In its approach, the president’s lawyers argued, the EFF had simply ignored the public protector’s “actual findings and her actual reasons for those findings”. The party had argued instead that Mkhwebane “could or should have made other adverse findings against the president for new reasons conjured up by the EFF”.

This, said the president’s lawyers, is not permissible.

“This is a review of the Public Protector’s Report. The question is whether her actual findings were lawful on the basis of her actual reasons. It is not permissible for the EFF to seek to justify her Report on the basis of new reasons for it.”

The EFF, in its submission to the SCA, attacked the High Court’s finding that the president had not wilfully misled Parliament.

“It is a good example of the EFF’s attempts to justify the findings of the Public Protector on new grounds wholly unrelated to her actual findings and actual reasons,” argued Ramaphosa.

The public protector’s finding that the president had breached this rule “was hopelessly flawed”, had been “misread” and there was no evidence that Ramaphosa had wilfully misled Parliament.

The EFF, in its submission, “did not even engage with the Public Protector’s findings or her reasons but attempted to make an entirely new case against the President”.

The party argued that Ramaphosa was in breach of a constitutional duty “to account to Parliament for ‘everything’,” argued his lawyers.

The EFF did not argue that the president had failed to disclose “a fact of which he was aware” but that “he failed to disclose a fact of which he ‘should have been aware’ because he was subject to a constitutional ‘duty of full knowledge’.”

“The EFF’s case is not only entirely new but also absurd. The foundation of its new case, that the Constitution requires the President to know everything and to disclose everything to parliament, is plainly absurd.”

Not only was the EFF’s “new case” unfounded, it was also contradicted by section 58 of the Constitution, which protected the president’s “freedom of speech in Parliament and immunises him against any liability for anything said in Parliament in good faith”.

The party argued that the president’s conduct had to be measured by an ethical rather than a legal standard. However, it had failed to explain why “an ill-defined ethical standard is applicable, rather than a legal standard”.

While the High Court had found no evidence that Ramphosa had wilfully misled Parliament, “remarkably, the EFF’s challenge to this finding is that ‘there is no duty on the EFF to adduce evidence or prove’ that the President misled Parliament”.

The party claimed that it was simply enough that there was a “threat of risk” of a conflict of interest, yet “the issue was whether the President deliberately misled Parliament”.

“Given the EFF’s own admission that it could produce no evidence to show deliberate misleading of Parliament by the President, there is no basis to this ground for leave to appeal. Since there was no evidence of a deliberate misleading of Parliament, the speculative arguments by the EFF in paragraphs of its application for leave to appeal should simply be dismissed.”

The president’s lawyers noted it should be recalled that “the Public Protector wrongly conflated the requirements of ‘inadvertent’ and ‘deliberate’ misleading of Parliament in the Executive Members Ethics Code”.

This arose, the president argued, from the PP’s reliance on an “old version of the Code”.

“The Public Protector admitted conflating these requirements, but argued that in the final analysis this made no difference.

“Importantly, however, the Public Protector could not explain how it came about that she had conflated the requirements. The Court correctly found her conduct not only inexplicable but wholly irrational.”

Applying the “wrong code” cut through her entire report, said the president’s lawyers.

“If that finding does not stand, the balance of the Report cannot stand.”

The EFF had not sought to defend the public protector’s erroneous finding “since the flawed application of the wrong code cannot be defended, the application for leave to appeal should be dismissed without more. The failure to apply the correct Code is fatal.”

Apart from this, the EFF had failed in its application to offer any “meaningful engagement with the true basis for the Court’s findings on jurisdiction”.

These findings included that the public protector’s jurisdiction is constrained by the Constitution, national legislation, and that section 182 (1) restricted the mandate of the public protector to “conduct in state affairs or in the Public Administration in any sphere of Government”.

Also, sections 6(4) and 6(5) of the Public Protector Act restricted the jurisdiction of the public protector to “governmental affairs”, the performance of “public functions”, the abuse of “public funds” and breaches of specific statutes.

These statutes included the Public Service and Prevention and Combating of Corrupt Activities Acts “but only where any alleged statutory breaches relate to governmental affairs, state affairs, public functions or misuse of public funds”.

The court found that the public protector had no “general power to investigate private, contractual matters between private citizens” and noted that whether or not a particular matter amounted to conduct in “state affairs” was a question of fact.

Ramaphosa had proved that the donations to the CR17 Campaign had not been controlled by him but by “a select group of individuals”.

A trust had been established in order to manage the CR17 Campaign and although the president “had a general understanding that monies were being collected, he generally had no specific knowledge of the identities of the persons who paid the moneys and the amounts that were paid. This in fact was the deliberate decision made by the CR17 Campaign itself.”

The intention behind the CR17 Campaign had been “to revive the ANC and to return it to its ethical values” and that the donors had been supporters of the CR17 Campaign.

“Any monies that were paid to the Cyril Ramaphosa Foundation never went to the President as he has never been a beneficiary of the Trust. In fact, the Trust itself was of a charitable character, focused mainly on education and the development of small black businesses.”

No evidence had been adduced “either by the Public Protector or the EFF to contradict the evidence of the President”.

“Ultimately the sole justification for investigating the CR17 Campaign funds advanced on behalf of the Public Protector during oral argument was that the term ‘state affairs’ in the Constitution should be given a wide meaning drawn from ‘political science’.”

This “baseless suggestion”, said the president’s lawyers, had been “rightly” rejected by the court.

The EFF’s “new arguments” stood to be rejected.

It was the public protector herself who had alleged that she had extended her scope beyond the complaints of Floyd Shivambu and Mmusi Maimane to the CR17 Campaign generally, “not this Court, as incorrectly suggested by the EFF”.

The EFF’s argument based on section 96(2)(b) of the Constitution, which prohibits a conflict of interest among members of the Cabinet, “completely” missed the point, noted the president’s lawyers.

“The section does not create jurisdiction. It assumes jurisdiction, but defines the subject matter which may be investigated. If no jurisdiction exists, section 96(2)(b) cannot establish jurisdiction. “

That this section might have been infringed “depends on facts”.

“No facts were established by the EFF or the Public Protector of a conflict or a risk of conflict between the interests of the President personally and his role either as Deputy President or the President of the country.”

The EFF, in its application, had argued that the Public Protector had jurisdiction to investigate the CR17 Campaign “because the President’s conduct ‘threatened to expose him to the risk of a conflict of interest in his official capacity’.”

This was because, the party alleged, Ramaphosa had not been aware of who had made donations and that this posed a risk of a conflict of interest.

Ramaphosa, said the EFF, could have acted in his donor’s favour without knowing.

“The EFF fails to understand that, if the President does not know that a donor had made a donation, then his conduct is inevitably entirely untainted by the donation and thus free of any conflict of interest. The EFF’s case to the contrary is based on their misconception of a conflict of interest.”

There was, said the president’s lawyers, “no reasonable prospect” that the SCA would come to a conclusion different to that of the High Court with regard to jurisdiction.

The EFF’s case ultimately rested “on a supposition of fact. It conflates the President, personally, with the CR17 Campaign. It draws the conclusion that the monies paid to the campaign were monies paid to the President personally.”

This was “a fundamental error in logic” which proved the “the irrationality of the approach adopted by the Public Protector. The EFF’s persistence with this argument reinforces the primary argument of the President, namely, that the EFF’s prospects of success on appeal are hopelessly weak.”

While the EFF argued that the PP was not under any obligation to consult Ramaphosa on remedy, “nobody suggested that she had any duty to consult the President on anything”.

“Her duty was to afford the President an opportunity to be heard on any adverse finding she proposed to make against him. Her determination of the remedial orders against him obviously constituted adverse findings upon which he was entitled to be heard before they were made.”

The EFF’s application should be dismissed as the party had failed to engage with the “fundamental findings of this court”.

“The EFF’s own collateral reasons for supporting the Public Protector’s investigations and findings could not cure the defects in the investigation process, and the findings in the Report of the Public Protector.”

Apart from its “peripheral interest in the matter and its inability to advance cogent, rational reasons in support of the Report” the EFF had engaged “in a lengthy exegesis reliant on speculative reasoning, but has failed to challenge the key premises of the judgment”.

The president’s lawyers concluded that the application should be “dismissed with costs, including the cost of two counsel”. DM

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