Everyone is equal before the law and has the right to equal protection and benefit from the law.
That’s what it says right up front in our Constitution, in the Bill of Rights. It’s one of the cornerstones of our democracy, and it ensures that no one – not even the President – can place him or herself beyond scrutiny or accountability. Of all the checks and balances on power written into our Constitution, this is surely the most important.
Yet it is this very principle that many South Africans, including influential voices in the media, are asking us to set aside for now, so that the so-called “good” faction of President Cyril Ramaphosa may prevail over the “bad” faction of his internal enemies in the ANC. Most of them are not denying that Ramaphosa, through his campaign bank account, accepted a payment of R500,000 from Bosasa’s controversial CEO, Gavin Watson. They’re merely asking us to stop pursuing this matter.
While some of the details still need to be aired – including the nature of his son Andile’s business relationship with Bosasa – many of the facts are known and are not disputed. In the interest of completeness, I will repeat here what we know:
On 6 November 2018, in an ordinary Presidential Q&A session in Parliament, I asked President Ramaphosa whether he had any knowledge of an alleged R500,000 payment made to his son, Andile Ramaphosa, from Bosasa CEO, Gavin Watson. I produced a signed affidavit indicating that such a transfer had taken place.
Responding to my question, President Ramaphosa confirmed knowledge of the payment from Bosasa, adding that his son had explained it to him as payment received for legitimate “consulting” services. He further said that he had seen a contract between his son and Bosasa for these services and that all was above board and corruption-proof.
At the time, Andile Ramaphosa had a direct connection to at least 34 companies, any of which could have been in business with Bosasa. I subsequently asked the President, his son and Bosasa for access to this contract via the Promotion of Access to Information Act (PAIA), but all three blocked my attempts.
This sent alarm bells ringing. The President’s son was doing business with Bosasa, a company widely known for bribing ANC officials, and the President was refusing to make public any of the details of this business.
However, a week later the President would issue a panicked retraction of his answer in Parliament. Late in the afternoon of Friday, 16 November 2018, Ramaphosa wrote to the Speaker of the National Assembly, claiming he was mistaken in his answer in the House. The R500,000, which he initially said was paid to his son was in fact a “donation” from Bosasa CEO, Gavin Watson, to his own CR17 election campaign to become ANC president.
Leaving aside the intention of the donation – which was looking more and more like a bribe with each passing development – and the clear conflict of interest arising from Andile Ramaphosa’s business with Bosasa, what we had here was a President who deliberately misled Parliament. A President who was then caught out and had to tell the truth before anyone else could.
Misleading Parliament is a serious breach of the Executive Ethics Code. The correct (and only) recourse available to us was to lay a complaint with the office of the Public Protector to investigate such a breach, which is what I did.
While the Public Protector’s investigation was ongoing:
I called for an independent inquiry, headed by a retired judge to be selected by the Chief Justice, to fully investigate the Bosasa scandal. President Ramaphosa declined this;
I called on President Ramaphosa to instruct his government to immediately cancel all contracts and tenders with Bosasa, and place a strict moratorium on any new contracts with the company or any of its subsidiaries;
I discovered that the slush-fund used to raise money for Ramaphosa’s election campaign to become ANC president – which included the R500,000 payment from Bosasa – was administered by a law firm whose director appears to have links to the Guptas and the State Capture project. Mr Jeffrey Afriat, a director at the EFG law firm, served as one of three directors of Trillian Capital and was cited twice by name in Thuli Madonsela’s State of Capture report. Afriat resigned as Trillian director shortly before the Budlender Inquiry into Trillian was launched.
At every turn, enquiries into these matters were stifled and ignored by the office of the President. Ramaphosa knows that the link between himself and Bosasa is a can of worms he cannot afford to open.
Given what we know about Bosasa and their decades-long history of bribery of ANC officials and government employees to land billions of rand of government contracts, it would be unthinkable not to pursue a detailed investigation into the nature and intention of this transaction.
And given what we also know about the typical modus operandi of government bribers – from the Arms Deal brokers to the Guptas to Bosasa – of using friends and family members of politicians as a conduit for the money, it is puzzling that the President could have thought a story about his son’s business ties with Bosasa would sound any less incriminating. If anything it places him even further under suspicion.
Bribing government officials has been extremely lucrative for Bosasa. To date, it has done business to the tune of at least R12 billion with the Departments of Correctional Services, Home Affairs, Justice, and the Airports Company of South Africa (ACSA) to name a few. A Special Investigating Unit (SIU) report back in 2007 found Bosasa to be embroiled in multiple allegations of fraud and corruption. Twelve years later the matter is still gathering dust on a desk at the National Prosecuting Authority (NPA).
Four months after Ramaphosa admitted to receiving the Bosasa money, the testimony of former Bosasa COO, Angelo Agrizzi, at the Zondo Commission into State Capture added much detail to the company’s shady business with the state and its propensity for bribery and corruption. Implicated in this testimony were the likes of Gwede Mantashe, Nomvula Mokonyane, Linda Mti, Vincent Smith, Dudu Myeni and Thabang Makwetla.
The more you look at the Ramaphosa payment, the more suspicious it seems. In any properly functioning democracy, it would be unheard of for such events not to set a thorough and urgent investigation in motion. And even in our own democracy, but under different circumstances, the calls for the truth would be swift and loud. If this were former president Jacob Zuma who received the R500,000 and then initially pinned it on his son, Duduzane, before changing his tune as the truth emerged, the calls for justice and equality before the law would be deafening.
But it’s not Zuma. It’s President Ramaphosa, the man on whose shoulders so many South Africans have pinned their hope. The man who represents the fairy tale that so many so desperately want to believe in that they cannot bear to lift the lid and peek inside at what appears to be irregularities, and even criminality. They’d rather not know, than know and have to reimagine South Africa’s future.
And so they are asking Ramaphosa to be let off the hook, for the sake of keeping the fairy tale intact. They are asking me and the DA to drop the matter, citing some twisted version of patriotism as the reason. For the sake of our country, stop going after Ramaphosa and siding with his enemies, they say.
Some feel the DA should not pursue this matter due to the cloud hanging over the head of the Public Protector, Busisiwe Mkhwebane, as if her competence plays a part in his guilt or innocence. Of course, this is not true. The transaction between Watson and Ramaphosa took place completely independent of the Public Protector. Her suitability for her position has nothing to do with whether he received tainted money, and whether this money was a bribe or not.
It is entirely possible for Mkhwebane to be unfit for office, and for Ramaphosa to have taken a bribe. The one doesn’t preclude the other.
Yes, the DA fought against the appointment of Mkhwebane as Public Protector. In fact, we were the only party to do so, while the ANC rubberstamped her appointment. We still believe she should not occupy this crucial position, and that her appointment was deeply flawed. But at the same time we have no choice but to respect the institution of her office and its role in safeguarding our democracy. Just as we have to respect the institutions of Parliament, the NPA, SARS or SAPS, regardless of how these institutions may have been subverted by State Capture.
On Monday our country’s highest court, the Constitutional Court, opened its judgment on whether the Public Protector must pay 15% of the Reserve Bank’s legal fees out of her own pocket with these fitting words:
“Accountability, equality before the law and transparency are some of the values on which our constitutional democracy was founded. It ought therefore never to matter who a person, natural or juristic, is whenever the need arises to breathe life into these values.
“In order to strengthen our constitutional democracy with the aid of these values, the State’s undiluted capacity to investigate and expose unethical conduct or improprieties is essential. That critical obligation is located in, among others, the Office of the Public Protector – one of the institutions that is indispensable for winning the fight against corruption and the realisation of good governance. A Public Protector, liked or disliked, must therefore not be lightly discomfited in the execution of her mandate.”
Despite one’s view of the incumbent, Busisiwe Mkhwebane, the office of the Public Protector is a vital constitutional tool in the fight against corruption and in holding the executive to account. We are duty-bound to pursue the correct – and only – channels available to us. We cannot simply hold off on all oversight until there is a more suitable candidate in the office of Public Protector.
As a father of two young children, I understand personally the fears that many hold for what could happen in the near future. The fear of the ANC alternative – the faction of DD Mabuza, Ace Magashule and former president Zuma. But that fear – however sincerely held – cannot trump the rule of law and the pursuit of justice. That fear cannot require us to look the other way and pretend that this entire controversy never happened so that the “good” ANC can triumph over the “bad” ANC.
We cannot consider sacrificing the constitutional principle of equality before the law in order to help one faction of the ANC overcome another. That would be a gross dereliction of our duty, not only as official opposition but also as law-abiding South African citizens.
South Africa cannot be held ransom to the ANCs hegemony any longer. If there truly is a good ANC and a bad ANC, then the party ought to split. This will foster much needed political reform in South Africa by breaking the ANC’s stranglehold on our nation, thereby paving the way towards true economic and societal reform.
The President has taken the Public Protector’s findings on review. We note this and recognise his right to do so. But what also needs to happen now is a thorough examination of the exorbitant funding mechanism of the ANC’s leadership race, as exposed in the report. I have called for this matter to be investigated by a separate, independent body.
I have also referred the prima facie evidence to Parliament and to the NPA. In doing so we are removing the Public Protector from the matter and asking the relevant and capable bodies to consider all the facts at hand – facts such as misleading Parliament, bribery, money laundering, conflict of interest and nepotism.
What is clear is that this matter runs much deeper than initially thought. The Public Protector has only scratched the surface when it comes to President Ramaphosa, Bosasa, and his son Andile’s business interests. This certainly requires further consideration and Parliament’s full attention.
Our job – and indeed that of all South Africans – is not to save the ANC from itself. We aren’t all delegates of some extended ANC congress. And it is most certainly not our responsibility to decide which transgressions of the law by ANC leaders should be acted upon and which ones should be ignored.
As a country, we need to be able to imagine a future that might lie beyond the ANC. We need to escape this Stockholm Syndrome that says our only hope lies in choosing the better of two ANC factions, and therefore Cyril Ramaphosa simply cannot be a tainted man. That would be dangerous and wholly undemocratic. DM
"You can't wait for inspiration. You have to go after it with a club." ~ Jack London