On Friday, Public Protector Busisiwe Mkhwebane landed a body blow to the Presidency of Cyril Ramaphosa when she made a finding that he misled parliament in violation of the Executive Ethics Code and the Constitution and that donations to his campaign may amount to money-laundering.
On Monday, the Constitutional Court dealt a blow to Mkhwebane’s office when it confirmed a High Court order that she pay a portion of costs personally in relation to her Absa/Reserve Bank lifeboat finding which has been successfully reviewed.
Ramaphosa confirmed on Sunday night that he will take the Public Protector’s finding on review and his legal team is now armed with a resounding judgment against her conduct, albeit in a separate case, from the apex court.
“The report is fundamentally and irretrievably flawed. This is confirmed by my legal representatives. The report contains numerous factual inaccuracies of material nature. Wrong in law. Irrational. (It) exceeds the scope of the powers (of the Public Protector),” said the president.
Ramaphosa will now take it on High Court review. It has its genesis in November 2018 in a question from the DA leader Mmusi Maimane to Ramaphosa about a R500 000 payment from Bosasa. Ramaphosa replied that it was a payment to his son Andile Ramaphosa which he later corrected to reveal that it was a R500 000 donation from Bosasa boss Gavin Watson to his campaign to become ANC president at the party’s elective conference in December 2017.
This self-correction did not cut the mustard for Mkhwebane who still found that Ramaphosa had misled parliament.
Where Public Protector’s report gets important for business
Mkhwebane then expanded her investigation to look into all funding of the so-called #CR17 campaign. There was a lot of moola and like all campaigns, either for elections or for internal party fights, the politicians do not reveal the sources of funding. It’s a major lacuna in South Africa’s body politic and it is about to be closed as political party laws are regulated and implemented.
The Public Protector has made an unprecedented finding in her report. She argues that because Ramaphosa was the deputy president of the country at the time he campaigned and was, therefore, an MP (Presidents are not members of parliament), he was expected to reveal all forms of material benefit in the parliamentary register of interests.
She has therefore found that the National Assembly Speaker Thandi Modise should within 30 days ensure that Ramaphosa makes right on this by registering all his donors in the parliamentary audit of interests.
This sets up a conundrum for Ramaphosa whose campaigners say, in his submissions to the Public Protector, that they created an iron wall between the President and the donors. He did not know who they were.
Mkhwebane pooh-poohs this idea of an iron curtain and says Ramaphosa must have known his donors as he spoke at many fund-raising dinners. She went a step further and also ordered the National Director of Public Prosecutions (NDPP) Shamila Batohi to begin investigating, in 30 days, suspicions of money-laundering.
This is extremely serious and will likely require that Ramaphosa must interdict Batohi too should he decide to take the report on review to the High Court. Ramaphosa is in a bind.
Business can take the sting out of the scorpion’s tale
The report by Mkhwebane and the response by the Presidency gives an idea of the quantum involved. Ramaphosa ran a well-funded campaign. His response paints the anatomy of the campaign which was national, multi-faceted, digital and terrestrial and by its own proclamation, it went beyond support for a candidate.
The campaign managers conceptualised it as a campaign to save the ANC, so it was historical and present. All of this costs money and it only just worked. Ramaphosa won by only 179 votes at the party contest. How can business help? Corporate and philanthropic donors can reveal themselves. By doing so, they will take the sting out of the tail of the report.
By standing up and saying that they helped fund the campaign and give details of all their party-political funding, this will set a benchmark for democratic practice. In addition, the business sector can provide details of how it funds all political parties.
The era of state capture has revealed that corruption occurred at the nexus of the relationship between political and private interests. By opening up donations to the disinfecting light of transparency, the business sector can provide a strong measure of good practice as Ramaphosa takes Mkhwebane’s report on review and set a vital precedent in the battle against state capture.
If South Africa is to ensure that state capture is a thing of the past, then a vital way of doing so is to be able to track how influence and money works in the political and private sectors. Will business do so? Highly unlikely. If you look at the annual reports of most companies, listed and unlisted, only a minority reveal their party-political donations.