Opinionista Paul Hoffman 21 July 2019

Legal confusion reigns in latest spat between Public Protector and Ramaphosa

Public Protector Busisiwe Mkhwebane and President Cyril Ramaphosa are both right and both wrong in the legal spat over the donation to the CR17 campaign.

Following the publication on 19 July 2019 of the Public Protector’s report on the DA and EFF complaints about the conduct of President Cyril Ramaphosa, the temperature of the debate around her competence and integrity as well as his ethics and alleged criminality has risen considerably.

It is best to start with what the law provides before venturing into a discussion of their respective points of view.

Our supreme law, the Constitution, sets specifically high standards for the conduct of Cabinet members and deputy ministers. They may not act in any way that is inconsistent with their office or take the risk of a conflict between their official duties and their private interests, nor may they use their position to enrich themselves or improperly benefit any other person. At all material times Ramaphosa was either deputy president or president and therefore a member of the executive in the national Cabinet.

Involvement in criminal activity is obviously “inconsistent with their office” because Cabinet members swear an oath to uphold the Constitution and the rule of law.

The Executive Members Ethics Act reinforces and expands on the constitutional obligations; it refers to the code of ethics prescribed for the executive branch of national and provincial government. An excerpt from clause 2 of the code suffices for present purposes:

2.1 Members of the executive must to the satisfaction of the President or the Premier, as the case may be

(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfil all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance; and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.

2.2 in deciding whether members of the executive complied with the provisions of clause 2. 1, the President or Premier, as the case may be, must take into account the promotion of an open, democratic and accountable government.

2.3 Members of the executive may not

(a) wilfully mislead the legislature to which they are accountable;”

The act gives the Public Protector the power to police the executive by investigating complaints from lawmakers, reporting on them and taking appropriate remedial action. Such action may include referring a complaint to another institution for further investigation.

The code also provides in clause 6 that members of the executive, including the president, must disclose:

6.2 Sponsorships:

(a) The source and description of direct financial sponsorship or assistance from any source other than the member’s party which benefits the member in his or her personal and private capacity; and

(b) the amount or value of the sponsorship or assistance.”

So much for the law.

The facts are not really in dispute: the leader of the Opposition questioned the president about an amount of R500,000 allegedly donated by Gavin Watson to Andile Ramaphosa, his son. The president thought, when he replied, that the payment was in terms of a service contract between Bosasa (Watson’s business) and Blue Crane (Andile Ramaphosa’s consultancy).

Actually, as he discovered after he so explained the transaction to Parliament, there was a donation of R500,000 to an attorneys’ trust account via an intermediary company from Watson for the “CR17 Campaign.” That campaign, which is not a legal entity, secured the president’s victory at Nasrec when the ANC elective conference was held there in December 2017.

Upon learning of the source of the donation, which had been accepted by “Team CR17”, the president said he didn’t want it and tried to refund it to Watson, apparently without success so far. He also informed the Speaker of his erroneous answer to the erroneous question in Parliament for the purpose of correcting the record.

As can be seen from the summary of facts above, the only part of the question that the leader of the Opposition got right was the amount of the donation: It would have been sufficient to say “no donation was made to Andile”, but in the interests of accountability and openness, the president revealed a lot more.

The Office of the Public Protector (OPP) has determined that Parliament was misled wilfully “and/or inadvertently” by the president. The law only requires a wilful misleading. Indeed, no one is capable of being wilful and inadvertent at the same time. Nor is it legally possible to be wilfully misleading while acting in good faith, yet the OPP finds that the president did act in good faith. The investigation of the misleading of Parliament has been hopelessly botched and will not withstand proper judicial scrutiny.

What then of the admitted receipt of a donation of R500,000 via several intermediaries?

The president has exposed himself to a situation in which the risk of a conflict between his official responsibility to ensure good governance conflicts with the implicit desire of Watson to remain in the good books of those in power — hence the desire to return the donation once it was exposed. Alas, the risk of a conflict of interest is all too obvious, whether or not the president won at Nasrec.

The law only requires the risk, not the actual conflict inherent in a sponsorship from an allegedly crooked businessman who was seen in a vault on a videotape played for the Zondo commission packing millions of rands of what he calls “monopoly money” allegedly to bribe officials, ANC members and others. It is no wonder the president does not want to keep the donation from Watson.

He is, however, in breach of his obligation to disclose the donation under clause 6 of the code, as quoted above. This is in dispute. The president says he did not receive the donation from Watson, the CR17 campaign did. The problem with this contention is that the campaign is not a legal entity, did not even have a bank account and could not itself benefit from the donation. The chief beneficiary of all donations to the CR17 campaign was the president himself. He was in honour and in law bound to disclose the amounts the campaign received as the benefits of the sponsorships and donations from Watson and others were for his personal political advancement.

This extraordinarily onerous obligation falls on all executive members because they hold a status in the affairs of state that ordinary politicians do not enjoy. A reductio ad absurdum example illustrates the point: If all the gangsters in and out of the jails of SA clubbed together to sponsor their champion for president in the expectation that he would pardon the whole lot of them, the undeclared acceptance of their sponsorships, donations and largesse would not only be a breach of the disclosure requirements, it would also give rise to the risk of a conflict, whether or not the champion wins any election.

It is surely legally untenable to contend, as the president does, that the CR17 campaign was the beneficiary of the donations and sponsorships it received. The campaign no longer exists, its purpose has, at least partially, been achieved. It “owes” money to the president which he knows he cannot recover legally even though he called the amounts involved “loans” to CR17. He is in breach of the code for not disclosing the benefits to him of the existence of the sponsorships and donations the campaign received. This strict regime applies only to members of the Executive due to the position that they occupy in the constitutional hierarchy of the land.

It was sheer folly to keep the identity of his benefactors from the president. He ought not to have agreed to remain ignorant due to his obligations under the Constitution, the act and the code. He could not even thank donors who he did not know were donors. Really?

As to whether the way in which CR17 received the gift from Watson (and perhaps others) amounts to the serious crime of money laundering, the prosecution service has been tasked by the OPP, very properly so, with investigating the alleged crime and should do so without delay and without fear, favour or prejudice. That is what the law requires. DM


In other news...

South Africa is in a very real battle. A political fight where terms such as truth and democracy can seem more of a suggestion as opposed to a necessity.

On one side of the battle are those openly willing to undermine the sovereignty of a democratic society, completely disregarding the weight and power of the oaths declared when they took office. If their mission was to decrease society’s trust in government - mission accomplished.

And on the other side are those who believe in the ethos of a country whose constitution was once declared the most progressive in the world. The hope that truth, justice and accountability in politics, business and society is not simply fairy tale dust sprinkled in great electoral speeches; but rather a cause that needs to be intentionally acted upon every day.

However, it would be an offensive oversight not to acknowledge that right there on the front lines, alongside whistleblowers and civil society, stand the journalists. Armed with only their determination to inform society and defend the truth, caught in the crossfire of shots fired from both sides.

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