The debate around the #CR17 campaign to raise funds and install Cyril Ramaphosa as ANC president in 2017 has now been exhausted through the legal system after the Constitutional Court ruled in his favour on Thursday.
The apex court set aside the damning findings that Public Protector Busisiwe Mkhwebane had made against Ramaphosa, including that he misled Parliament on the nature of the R500 000 donation from Gavin Watson, the late CEO of corruption accused firm Bosasa, and also failed to declare the campaign sponsorship to Parliament as personal benefits.
However, Chief Justice Mogoeng Mogoeng wrote a dissenting judgment, in which he accepted that the R400 million #CR17 funds amounted to a personal benefit to Ramaphosa and should have been declared to Parliament, according to Justice Chris Jafta, who read the judgment on behalf of the court. Mogoeng also found that Ramaphosa lied when he testified that he was not involved in the affairs of the campaign.
One or two court cases remain that may keep the #CR17 dispute alive, including the pending court decision on the sealing of the campaign bank statements and, of course, suspended ANC secretary-general Ace Magashule’s court bid to reverse his ousting and confirm that the party ought to have suspended Ramaphosa for his involvement in the #CR17 campaign.
However, neither matter seeks to interrogate the material facts about the campaign in the manner that Mkhwebane had sought to do. The ANC integrity commission has also washed its hands of the matter, stating that its powers could not be enforced retrospectively.
Whether or not Ramaphosa’s political opponents would continue to raise the matter within ANC structures remains to be seen, particularly in relation to the party’s constitutional clause that the use of money to contest internal elections is outlawed.
Thus far, Ramaphosa has managed to evade both criminal and ethical liability, persuading the country’s top judges that the campaign was conducted within the confines of the law and therefore his involvement could not be legally faulted.
The aim and purpose of the campaign had caused a lot of disagreement between Ramaphosa and Mkhwebane. She preferred a narrow approach, defining the #CR17 campaign as one specifically launched to elect Ramaphosa as ANC president. On that basis, she concluded that Ramaphosa enjoyed a material benefit from the campaign and therefore, as the then deputy president of the country, he was duty-bound to declare the donations and sponsorship in line with the Executive Members’ Ethics Act.
Ramaphosa and his lobbyists preferred a wider definition, submitting that the campaign was not specifically about him, but also the group of people who would take up collective leadership of the ANC with him, as the national executive committee. The difference may seem subtle, in that, while Ramaphosa did benefit from the political and financial support, he derived those benefits as part of a group of people who believed in the cause and not in his personal capacity.
The argument tilted the judges’ decisions in Ramaphosa’s favour. Justice Jafta said on Thursday that “the evidence on record showed that (Ramaphosa) did not personally benefit”. While Mkhwebane may not have believed the submissions, she was bound by the evidence before her. Also, said the judge, the issues of both Ramaphosa’s alleged personal benefit and his failure to disclose the gifts to Parliament were not part of the original complaint and therefore Mkhwebane had “no authority to investigate matters falling outside of the complaint”.
The court also found no evidence to support the conclusion that Ramaphosa used his position as the then deputy president to enrich himself and his son, Andile, since neither knew anything of Watson’s donation. The court accepted that Ramaphosa had no say in how the #CR17 money was disbursed, according to undisputed evidence, even if some of it was paid to the Cyril Ramaphosa Foundation.
Jafta also said the court rejected the submission by the co-appellants, the EFF, that “internal party elections constitute state affairs”. “Political parties do not perform a public function of exercising public power when they conduct election,” he explained.
The court also found that Mkhwebane did not show that Ramaphosa “wilfully” misled Parliament when he confirmed that the money from Watson was a payment to his son, based on the business relationship the two parties had. He later submitted a correction to the Speaker, Thandi Modise, after taking advice, that the money was instead a donation to his presidential campaign.
The judge said that Mkhwebane, in the absence of evidence that Ramaphosa acted wilfully, sought to change the code of ethics that bound the conduct of members of the executive to include the words “deliberately and inadvertently”. He said Mkhwebane was wrong to change the code. “She could not have thought that the word ‘wilfully’ could also mean ‘inadvertently’, because that went beyond the parameters of interpretation.”
On money laundering, the court said there was no evidence that the Watson funds passed through “several intermediaries” as alleged. Earlier, the court had said that Mkhwebane should not even have entertained this leg of the complaint from former DA leader Mmusi Maimane. The court also found that Mkhwebane should have granted Ramaphosa a hearing before issuing the remedial action.