The framing of President Cyril Ramaphosa’s ANC presidential campaign funds as a party political matter falling outside of the Public Protector’s jurisdiction was flawed.
This is what Public Protector Busisiwe Mkhwebane’s lawyer told the Constitutional Court judges on Thursday.
Advocate Muzi Sikhakhane said the donations to Ramaphosa’s 2017 campaign to lead the ANC – estimated at R400 million – was “money given to an individual to compete with his colleagues in his party so that he can win”.
“In our view that is a significant donation by private parties into the coffers that are designed to advantage a single individual, not a party, to win internally so that he could become president of that party,” said Sikhakhane.
He said the Pretoria High Court got it wrong in March this year when the full bench of judges failed to look at state affairs that the Constitution identifies to include even Ramaphosa’s conduct in the private space. Ramaphosa was then deputy president of the country and subject to the executive ethics code.
Mkhwebane had applied for a direct appeal to the Constitutional Court in a bid to overturn the high court’s judgment delivered in March, which reviewed and set aside her decision to investigate and report on the #CR17 campaign for the ANC leadership elected in Nasrec in December 2017.
The court also reviewed and set aside the findings and remedial orders in the Public Protector’s report and ordered her to pay punitive costs in the application. The litigation stemmed from a November 2018 question that former DA leader Mmusi Maimane posed to Ramaphosa in Parliament relating to the payment of an amount of R500 000 from the late Gavin Watson, then CEO of Africa Global Operations, formerly known as Bosasa, into an account which allegedly belonged to the president’s son, Andile Ramaphosa.
Ramaphosa then gave an incorrect response, telling Parliament that his son was involved in business with Bosasa, and that the payment was related to work which he had conducted for that company. He later retracted the response, saying the payment was actually made on behalf of Watson to the #CR17 campaign.
Both Maimane and EFF deputy president Floyd Shivambu would later complain to Mkhwebane regarding the relationship between Ramaphosa and Bosasa as well as Ramaphosa’s alleged breach of the executive ethics code.
On Thursday Sikhakhane also agreed with Justice Nonkosi Mhlantla that the fact that Ramaphosa was then the deputy president, his conduct would fall within the definition of state affairs and therefore within the jurisdiction of the Public Protector.
“We submit that the conduct of the deputy president who is effectively trying to become, effectively, the president of the country, is a matter within the definition of state affairs.
“The notion that this was a matter that relates to party political funding is dispelled, immediately, by a statement by the ANC which says this was not a donation into the ANC and how it should advance its own internal democracy. This was a donation to a person with those that were around him, to compete and defeat their own colleagues in the party, so it was not a donation to the party,” said Sikhakhane.
Justice Mbuyiseli Madlanga asked if Mkhwebane’s position would have been different if Ramaphosa was running for the leadership position for one of the opposition parties. Sikhakhane said one had to look at the state including the government as a place where political players compete in order to capture the state and to be part of the ruling elite.
“Therefore the conduct of a political party in its endeavours to get hold of the levers of the stare is a state matter. And therefore the line that separates what is the conduct that is private for a player in politics is very fine.”
He said caution must be exercised both in public and in private and it was in weddings and bribes where officials get bribed, not in their offices. He said the law required those in office, not just to guard against conduct within the public sphere, “but how in their private lives and private ambitions, they may compromise or run the risk of a conflict of interest between matters of government and the matters that are private”.
Sikhakhane also fielded a question from Justice Leona Theron, who sought clarity on the basis for the direct appeal to the apex court.
Justice Theron said “a direct appeal is simply not available for the asking and that there must be exceptional circumstances”.
Sikhakhane said it was “quite exceptional that we are dealing with constitutional functions of our president and whether or not an organ of state such as the Public Protector, which is constitutionally tasked to strengthen and protect democracy, that the two of these constitutional beings are at loggerheads about the scope of their functions and accountability”.
“There is something exceptional about the fact that we are dealing with where to draw the line about these most important constitutional beings,” he said.
However, Justice Chris Jafta was seemingly not persuaded. “Our jurisprudence has laid down a test that says it must be exceptional circumstances. If one looks at those factors, one does not find this factor of the importance of the power and the functionary that is the repository of that power.
“I just want to understand, how does it square up to the standard laid down by this court in relation to the circumstances which ordinarily would constitute exceptional circumstances,” he said.
Sikhakhane said the matter was exceptional because there was a clash between the head of state in relation to the standard to which he must be held, and how far the Public Protector can go to deal with the head of state and the nature of his or her accountability.
“Our submission is that it is a matter that this court must consider exceptional. It may not be exceptional all the time that a case between the Public Protector and the president are exceptional. I’m suggesting that this matter deals with a possible constitutional breach of a function. The matter of a possible breach of the Constitution by the president and deputy president is an exceptional matter.”
Jafta retorted: “We have already dismissed a case where the president was involved on the basis that a direct appeal was not warranted. The matter also related to an allegation that the president has breached an obligation that is imposed upon him by the Constitution to sign a bill that has been passed by Parliament and was submitted to him.”
He wanted to know what were the distinguishing factors in the current case. Jafta said the Constitution created a structure of the courts and conferred a constitutional jurisdiction on the high court and the Supreme Court of Appeal.
“If a litigant wants to bypass the Supreme Court of Appeal, that litigant must justify why the Supreme Court of Appeal should be denied an opportunity of exercising the Constitutional power conferred upon it by the Constitution.”
Sikhakhane said each and every case relating to the two functionaries did not always constitute exceptional circumstances.
“I’m suggesting that in the circumstances of this case, where the president is accused of a serious breach and a possible accusation that the president lied to Parliament – over and above what his duties are – distinguishes this from any previous or future clashes between the two functionaries.”
He said the matter “hangs on the heads of both the Public Protector and the president of this country. I submit that it is in the interest of justice for this court to deal with this matter once and for all”.
On the question whether Mkhwebane had the powers to direct the national director of public prosecutions, Shamila Batohi, on what to do, Sikhakhane said she could not direct in such detail but she must just refer.
“It is sufficient that she made the reference to the right authority, and that on its own could not mean that the entire remedial action is unlawful,” he said.
“But what is to become of the part that seems to impose an obligation for as long as the remedial action. My submission is that it is not the entire report and the entire remedial action that should be set aside . I’m not suggesting that the report is perfect. There are aspects that may well be vulnerable to challenge and those aspects, not the entire report, must be set aside.”
The hearing continued on Thursday where legal representatives for EFF, Ramaphosa, Batohi, Speaker of the National Assembly Thandi Modise and Amabhungane were expected to argue their case before the court.