Detractors within the ANC will not support action against Mkhwebane while opposition parties want Parliament to discipline him.
President Cyril Ramaphosa is likely to interdict the implementation of the Public Protector’s report after at least one political party called for his resignation and his opponents in the ANC leadership gear up to use it against him.
Ramaphosa, who is facing a concerted onslaught from supporters of former president Jacob Zuma and ANC secretary-general Ace Magashule, is fighting to retain his presidency as Public Protector Busisiwe Mkhwebane’s findings keep piling the pressure on him and his allies.
His detractors in the ANC’s national executive committee (NEC) have also vowed to resist any attempt by Parliament to remove Mkhwebane, ostensibly on the grounds that she is unfit to hold office.
In her report, Mkhwebane found that Ramaphosa misled Parliament about a donation received from Gavin Watson, the chief executive of controversial facilities company African Global Operations (AGO).
But, more worrying for Ramaphosa, is what will come up at the NEC meeting this week.
In a finding that shook the president, who has served just two months in office, Mkhwebane ruled that Ramaphosa had violated the Constitution by failing to declare donations and ordered that the National Prosecuting Authority also investigate allegations of money laundering.
However, Ramaphosa will review the findings after his legal team argued that the investigation was unlawful.
He confirmed this during a press conference on Sunday.
“After careful study, I have concluded that the report is fundamentally and irretrievably flawed. This is strongly confirmed by my legal representatives. The report contains numerous factual inaccuracies of a material nature,” Ramaphosa said.
He said Mkhwebane’s findings were wrong in law and irrational and in some instances she had exceed the scope of the powers of the Public Protector.
“Furthermore, in failing to provide me with an opportunity to comment on proposed remedial action, the Public Protector has violated provisions of the Public Protector Act, the Constitution and principles of common law,” he added.
“I have therefore decided to seek an urgent judicial review of the Public Protector’s report, its findings and remedial action. I have instructed my legal representatives to prepare an application to this effect as a matter of urgency.”
A Ramaphosa ally said his lawyers were likely to apply for an interdict to stop the implementation of Mkhwebane’s recommendation that the matter be referred to a parliamentary joint committee, as well as her instruction to disclose the funders.
But they would not challenge any matters referred to the national director of public prosecutions for investigation.
Ramaphosa’s legal team believe that the investigation was supposed to look into whether the company run by Ramaphosa’s son, Andile, was indeed providing a consultancy service for Watson’s AGO, and not look into the CR17 campaign.
Mkhwebane’s finding that Ramaphosa was supposed to declare his financial interests, given that he was deputy president at the time, was also slammed by his attorneys at law firm HNM.
“The president is not bound to declare the donations he received for his campaign because it was not for him directly but for the campaign,” they said.
Mkhwebane explained that any funds the president had received during his ANC CR17 campaign were donations and therefore benefited him in a material nature.
According to her findings, there are valid grounds for suspicions of money laundering because the donation from AGO passed through several intermediaries.
Mkhwebane’s investigation stems from complaints by DA leader Mmusi Maimane, who alleged that Ramaphosa had violated the Executive Code of Ethics.
The Public Protector has asked the Speaker of Parliament to demand that all Ramaphosa’s donors be made public within 30 days.
She has also instructed that the police investigate Watson for allegedly having lied under oath.
The Speaker must, in 30 days, refer the president’s violation of the code to the joint committee on ethics and members’ interests.
The two biggest opposition parties, the DA and EFF, have called for due parliamentary process to be followed to discipline the president, but have not called for him to resign.
Only the African Transformation Movement (ATM) has called for his head.
Following the release of Mkhwebane’s report on Friday, the ANC said it welcomed Ramaphosa’s decision to study it before resolving how to proceed.
The DA has consistently been calling for Parliament to begin the process of removing Mkhwebane, questioning her understanding of the law.
But at least three NEC members to whom City Press spoke to said it would not be strategic for the president to be seen to be fighting her.
An NEC member who is close to Ramaphosa said: “We will not call for her removal at the NEC, although I am sure there are people who are tempted to do so. They have good intentions, but it would not be good for the president to be seen to be going for her after she has made a finding against him – it will look as if he is defending himself.
“We have the numbers in the NEC so we could push for that move, but this requires political maturity and a long-term view. The president has handled this matter properly without seeking to discredit the Public Protector. So, he would not support such a call in his name.”
Another pro-Ramaphosa NEC member said: “The NEC meeting will be hectic because we will have to address this matter and, of course, the other side will want to use it to fight him (the president). The issue is that if you say Ramaphosa must not be defended, you are saying that the other one (deputy president David Mabuza) must emerge. That would be a disaster – everyone knows that.
“We need to make things work with this president. The difficulty we have is the R200 million (referring to the amount originally thought to have been collected for CR17). We cannot ignore that figure. Something will have to be said about it or clarity given, because it changes things.”
However, an NEC member who has been unhappy with how Ramaphosa has handled the matter involving Public Enterprises Minister Pravin Gordhan – whom the Public Protector has implicated in the establishment of a so-called rogue unit in a report that the minister is taking on review – said they would not agree with any proposal to remove Mkhwebane.
“The NEC will be divided on the matter of removing the Public Protector. The majority of people will not agree. There are those who can say she will go, but it won’t work. Some of us have already said publicly that it should not happen. People like Tony Yengeni have been vocal, and there are many of us who have not gone public yet with our view. But we won’t allow it.
“Don’t worry about the media darlings who think that because they can rally the media, they can influence the NEC. The ANC does not work like that. We are on watch in the NEC and we all have a right to talk there. She will not be removed.
“The president is compromised on Gordhan (by not taking action against the minister, following the release of the Public Protector’s report). I don’t know what needs to be done. He is surrounding himself with people who will open him up to many problems.
“The comrades who spoke during the debate in the National Assembly this week were busy defending him instead of speaking about their departmental programmes.”
Another NEC member said: “Spending R300 million to be a leader of the ANC is too much. The ANC is now in debt, but you have a loony group able to access that amount of money. What does it mean? This is risky and dangerous.”
Maimane said the DA would be seeking a number of avenues to bring the president to account.
This includes forming an ad hoc committee, which will have to take the necessary steps to discipline the president.
“In that instance, Mr Ramaphosa must be able to come and argue his case in Parliament,” said Maimane.
Citing the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, he said that in such an instance, if the president was found guilty by the committee, the act stipulates that he must be fined or imprisoned.
The EFF has urged Ramaphosa to comply with the Public Protector’s remedial action, and has requested that the Speaker of the National Assembly initiate a process to subject him to parliamentary discipline.
“Without respect for chapter 9 institutions, there can never be the rule of law,” said the red berets.
“Ramaphosa must comply and restore confidence in the Office of the Public Protector and the rule of law.”
The EFF reiterated its call for the president to disclose the names of companies and individuals who funded his campaign.
“Long ago, the commander-in-chief, Julius Malema, already made this call to Ramaphosa in Parliament – that he take the nation into his confidence about who had funded his ANC presidential campaign. He did not listen then. We hope that he will not repeat the same mistake now.”
The recently formed ATM has expressed shock over Mkhwebane’s findings and has questioned the president’s credibility.
“We are therefore uncertain that anything that the president will ever say is true from here onwards. It is impractical for us to always rely on the Public Protector to verify whether whatever the president says is true,” said the party.
The ATM has gone as far as calling for the president to step down.
“The country deserves a leader it can trust and not have to second guess,” it said.
The president’s legal team has slammed findings that Ramaphosa was aware of the donation made by the AGO head Watson, insisting that he was informed only prior to the question-and-answer session in Parliament dealing with the matter that the R500 000 in question was indeed a donation for his 2017 ANC presidential campaign.
“The president and his campaign managers had come to the agreement that they would not disclose any details about the donors,” claim his lawyers.
They labelled allegations that he was involved in money laundering “absurd”, because Mkhwebane had based this finding on the fact that Watson had apparently routed his donation to CR17 via a private company.
Ramaphosa’s legal team also highlighted the fact that they were not granted the opportunity to interview Watson.
They claim to have received no response from the Public Protector’s office, but instead found out through an article in City Press that the Public Protector Act did not allow for witnesses to be cross-examined.