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WRAP | EFF battle over Ramaphosa's CR17 campaign in court

President Cyril Ramaphosa.
President Cyril Ramaphosa.
Jabu Kumalo
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17 March 10:39

Judge Cassim Sardiwalla reserves judgment on the CR17 case. He says he will hand down judgment in the case, which he says is "of great public interest", will be handed down in due course.

17 March 10:39

Semenya argues that donating to the CR17 campaign was "not something embarrassing" and that disclosure of the identities of donors cannot be said to be "something that threatens their inner sanctum" of privacy.

Comment: at the time that the identities of certain donors and CR17 recipients were disclosed in the media, prior to the sealing of the CR17 records, several were accused of corruption and subjected to social media attacks.

The toxicity that continues to surround the CR17 campaign arguably serves as a major deterrent to donors to declare their financial support of Ramaphosa.

At the same time, the secrecy around these records allows rumour and suspicion about their donors and recipients to thrive.

- Karyn Maughan

17 March 10:37

Judge Cassim Sardiwalla thanks participants and reserves judgment. Court adjourns
Judge Cassim Sardiwalla thanks participants and reserves
judgment. Court adjourns

17 March 10:33

Semenya argues that the EFF application also represents "Joe Public" who has a right to access the financial records

17 March 10:27

Semenya argues that the public interest weighs more heavily than the privacy of the people who made donations to the CR17 campaign.

17 March 10:23

Advocate Ishmael Semenya, for the EFF, is now replying to the arguments advanced by the CR17 fundraising committee and the Financial Intelligence Centre.

He continues to argue that the principle of open justice requires that the full court record should be available to the public - including the CR17 bank statements.

He points out that, while bank statements are typically confidential, there is a legal basis to override that confidentiality when there is a clear public interest.

- Karyn Maughan

17 March 10:19

Semenya for the EFF, argues that they have pleaded the case, contradicting Morrison
Semenya for the EFF, argues that they have pleaded the case,
contradicting Morrison

17 March 10:14

Advocate Les Morrison, for the Financial Intelligence Centre, argues that the EFF failed to attack the confidentiality attached to the FIC report on the CR17 bank accounts - to which the CR17 bank statements were attached.

As a result, he says, the report and its bank statements cannot be released to the public.

- Karyn Maughan

17 March 10:12

It's difficult for the judge to hear EFF counsel

17 March 10:08

Arguments get under way on day 2 in the case of the EFF wanting access to the bank records of President Cyril Ramaphosa's CR17 campaign
Arguments get under way on day 2 in the case of the EFF
wanting access to the bank records of President Cyril Ramaphosa's CR17 campaign

16 March 19:16

Ramaphosa lawyers say bank statements are private

The principle of open justice does not apply to the CR17 bank statements, as the documents were never before in an open court. 

This was a central argument in opposing the EFF’s application to have the bank statements related to President Cyril Ramaphosa’s campaign for ANC president to be unsealed. 

The arguments were made in the Gauteng High Court in Pretoria on Tuesday, after the EFF brought the application because the documents were sealed by the same court during a review application of the Public Protector’s report on the matter.

The EFF argued that Ramaphosa could not hide behind the veil that the CR17 campaign was part of a private political matter, as winning the ANC elective conference paved the way to take up the top position in the country.

The court also heard that the documents were of public interest and that, because they were filed with the court, they should be publicly available in line with the principle of open justice. 

However, advocate Wim Trengove SC, for the CR17 committee, dismissed this notion, arguing that the documents never made it to an open court. 

READ HERE

16 March 15:48

Advocate Les Morrison, for the Financial Intelligence Centre, says the FIC challenged president Ramaphosa’s accusations that it had acted unlawfully in providing its report on his CR17 campaign accounts to the Public Protector.

He did not persist in those claims.

FIC now opposing the EFF’s application for the unsealing of the CR17 record on "the basis of the confidentiality provisions of the Financial Intelligence Centre Act 2001".

He says EFF has failed to address the provisions of this Act in their case for the unsealing of the CR17 records.

- Karyn Maughan

16 March 14:57

Trengove: This was a private election of a private political party, which the public did not have the right to vote in – "least of all the EFF".

While he says he's "glad to hear" that EFF says it wants to fight corruption, he stresses that this fight does not entitle the party to obtain private information.

Again, Sardiwalla interjects.

"Does the public not the right to this information?" he asks.

But it's private information, Trengove answers.

- Karyn Maughan

16 March 14:56

Judge Sardiwalla once again asks whether the financial records are not in the public interest. Trengove says no, cites a case regarding First Rand Bank
Judge Sardiwalla once again asks whether the financial
records are not in the public interest. Trengove says no, cites a case
regarding First Rand Bank

16 March 14:48

Comment: The fact that the EFF and other respondents were granted access to the sealed records, and chose never to bring those documents into the main review application, is to my mind, fatal for the EFF's application today.

In the political arena, the ongoing rhetoric by EFF leader Julius Malema is thrown into sharp relief.

- Kyle Cowan

16 March 14:47

Trengove says the law makes it clear that bank statements are private.

But what about the issue of public interest? Judge Sardiwalla asks.

Trengove again stresses that the High Court had already found that Ramaphosa was not required to disclose his donors, as the Executive Ethics Code did not apply to CR17.

There are also "overwhelming considerations" in favour of protecting the privacy of CR17 donors, he says.

- Karyn Maughan

16 March 14:45

Trengove further argues that the #CR17 bank statements are the fruits of an unlawful investigation as found by the High Court and that the court found that Ramaphosa did not need to disclose the records as per the executive ethics code. Tweet from @AlexMitchley

16 March 14:43

Trengove points out that the EFF's lawyers and the party itself were given access to the sealed CR17 records, after signing a confidentiality agreement, and were invited to challenge the sealing of those documents.

They chose not to so, until a year later, after President Cyril Ramaphosa had won his challenge to Mkhwebane's report.

The EFF also did not, until now, argue that DJP Ledwaba's directive that the record should be sealed was unlawful.

It was "quite inappropriate" for the party to do so now, Trengove says.

- Karyn Maughan

<p>Trengove points out that the EFF's lawyers and the party
itself were given access to the sealed CR17 records, after signing a
confidentiality agreement, and were invited to challenge the sealing of those
documents. </p><p>They chose not to so, until a year later, after President Cyril
Ramaphosa had won his challenge to Mkhwebane's report. </p><p>The EFF also did not, until
now, argue that DJP Ledwaba's directive that the record should be sealed was
unlawful. </p><p>It was "quite inappropriate" for the party to do so now,
Trengove says.

</p><p>- Karyn Maughan

</p>

16 March 14:34

Advocate Trengove, for the CR17 committee which is opposing the EFF's application, submits that: "The wide-eyed view that these records are somehow mysterious is with respect, incorrect. The court has already found there was no wrongdoing."

Trengove argues that counsel for the EFF have argued the matter as if there was no High Court judgment setting aside the Public Protector's report.

- Kyle Cowan

16 March 14:33

Wim Trengove argues that the FIC report on the CR17 bank accounts - which included the campaign bank statements - never formed part of the evidence that the High Court considered in reaching its decision to invalidate the Public Protector's CR17 report.

The principle of open justice therefore does not apply, he says.

Trengove stresses that a full bench of the High Court found that:

-       Public Protector's investigation of CR17 was unlawful

-       Ramaphosa was not obliged to donate his CR17 donations under the Executive Ethics Code

-       There was "no evidence whatsoever" of money-laundering, as the Public Protector had suggested It flows from that finding, he says, that the CR17 bank statements are the "fruits of an unlawful investigation".

- Karyn Maughan

16 March 14:29

He says the documents are the result of an unlawful investigation

16 March 14:28

Trengove says Ramaphosa was not obliged to disclose the funding information

16 March 14:27

Advocate Wim Trengove argues for the CR17 campaign and says that the Public Protector's investigation of the campaign was unlawful
Advocate Wim Trengove argues for the CR17 campaign and says
that the Public Protector's investigation of the campaign was unlawful

16 March 14:22

Ramogale also argues that PAIA applications do not apply to court documents and records, so the argument that those seeking the #CR17 bank statements must do so through PAIA does not hold water. Tweet from @AlexMitchley

16 March 14:21

Ramogale disputes CR17 campaign argument that the Public Protector acted unlawfully when she included the confidential Financial Intelligence Centre report in her CR17 record.

The inclusion of confidential documents in Rule 53 records is allowed, he says.

He also disputes the CR17 campaign argument that the EFF should have sought full access to that Rule 53 record using the Promotion of Access to Information Act.

Ramogale says PAIA does not apply to court records.

- Karyn Maughan

<p>Ramogale disputes CR17 campaign argument that the Public
Protector acted unlawfully when she included the confidential Financial
Intelligence Centre report in her CR17 record. </p><p>The inclusion of confidential
documents in Rule 53 records is allowed, he says. </p><p>He also disputes the CR17
campaign argument that the EFF should have sought full access to that Rule 53
record using the Promotion of Access to Information Act. </p><p>Ramogale says PAIA
does not apply to court records.

</p><p>- Karyn Maughan

</p>

16 March 14:16

Advocate Tshidiso Ramogale, for investigative journalism body amaBhungane, stresses that it is not making submissions on the facts of the CR17 dispute - but is rather making legal arguments, largely focused on the principle of open justice.

Ramogale says Judge Sardiwalla was "correct" to ask if any reasons for sealing the CR17 record were furnished by DJP Aubrey Ledwaba, and says the apparent absence of such reasons "should weigh heavily on the court".

Ramogale says court need to ask itself whether the privacy rights claimed by the CR17 campaign fundraising committee on behalf of its donors trumps the public interest in knowing who funded Ramaphosa's campaign for ANC leadership.

- Karyn Maughan

16 March 14:10

The lawyer for amaBhungane makes submissions on open justice
The lawyer for amaBhungane makes submissions on open justice

16 March 14:07

Public interest, open justice, accountability and Rule 53 of the court, were the central arguments advanced by the EFF as to why the #CR17 bank statements should be unsealed.

After lunch, the respondents opposing the application will argue. Tweet from @AlexMitchley

16 March 14:05

We're back

16 March 12:47

Adjournment – to recommence at 14:00

16 March 12:45

The Constitutional Court has yet to rule on Public Protector Busisiwe Mkhwebane's bid to appeal the Pretoria High Court's invalidation of her CR17 report, in which she found that the campaign's movement of funds raised suspicions that it may be implicated in money-laundering.

The High Court ruled that this finding was legally and factually baseless – and also agreed with prosecuting boss Shamila Batohi that Mkhwebane did not have the legal power to compel the NPA to investigate this alleged money-laundering.

Mkhwebane continues to argue that Ramaphosa had a duty to disclose the donations raised by the campaign that saw him elected ANC president at the party's elective conference in December 2017.

- Karyn Maughan

16 March 12:40

The submission by Premhid over the lack of evidence around confidentiality undertakings by the CR17 campaign, is a central issue.

As Karyn points out, it's the basis of the submissions made to Ledwaba that resulted in the directive to seal the records. It will be interesting to see how the CR17 campaign's counsel deals with this point.

- Kyle Cowan

<p>The submission by Premhid over the lack of evidence around
confidentiality undertakings by the CR17 campaign, is a central issue. </p><p>As Karyn
points out, it's the basis of the submissions made to Ledwaba that resulted in
the directive to seal the records. It will be interesting to see how the CR17
campaign's counsel deals with this point. </p><p>- Kyle Cowan

</p>

16 March 12:37

Premhid says it's "telling" that CR17 campaign has "never once" provided any evidence that it promised donors that their privacy would be protected if they financially supported Ramaphosa.

He also points out that the campaign claimed that it was agreed the president would not be involved in soliciting donations, even though he addressed fund-raising dinners and was consulted on the guest lists for such dinners.

Premhid clearly seeking to undermine the CR17 campaign's claims that they promised confidentiality to donors - which was the primary basis on which DJP Ledwaba sealed the CR17 bank statements.

- Karyn Maughan

16 March 12:33

Comment: Remarkable position by the EFF which is submitting that information on the CR17 donations is necessary to hold "politicians, especially those in government, accountable".

While not relevant to these proceedings, it's hypocritical of the EFF to take this stance, considering its own unwillingness to make transparent the sources of funding and donors it utilises.

- Kyle Cowan

16 March 12:29

Advocate Premhid argues that the rights to privacy of Ramaphosa's donors, who were promised that their donations would remain confidential, should not outweigh the public's interest in knowing who funded the President's successful ANC leadership campaign.

He says EFF is not seeking an invasion of privacy that would allow it to "go on a fishing expedition".

"Holding politicians, especially those in government, accountable for who they get money from, and who they pay that money to, is crucial in ensuring that politicians – and the wider political establishment – remain transparent, open, and accountable," the EFF has argued in court papers.

- Karyn Maughan

16 March 12:26

Karyn, I think its worth at this point to remind our readers that Public Protector Mkhwebane found in her report, that has been set aside, the records showed a "risk of money laundering" and recommended an investigation by the national police commissioner and the National Prosecuting Authority.

- Kyle Cowan

<p>Karyn, I think its worth at this point to remind our readers that Public Protector Mkhwebane found in her report, that has been set aside, the records showed a "risk of money laundering" and recommended an investigation by the national police commissioner and the National Prosecuting Authority. </p><p>- Kyle Cowan</p>

16 March 12:25

Advocate Premhid argues that there is an "intrinsic value" in the records that a decision-maker relied on to make his or her decision being publicly available.

He says such access allows the public to make their own minds up about whether the decision reached by an official like the Public Protector is sound, or not.

- Karyn Maughan

16 March 12:21

A surprising admission by Premhid, for the EFF, that the EFF did not obtain the transcript of the case management meetings during which the decision was made by Ledwaba to seal the records.

He was responding to a question by Judge Sardiwalla, who wanted to hear the EFF's position on the reasons why the record was sealed at the time.

- Kyle Cowan

16 March 12:20

Advocate Kameel Premhid for the EFF now speaks about the sealing of the #CR17 bank statements argues that the sealing of the statements is inconstant with the rules around openness and rule 53 and should be lifted. Tweet from @AlexMitchley

16 March 12:18

Judge Cassim Sardiwalla asks Advocate Premhid, for the EFF, to address him on the directive issued by DJP Ledwaba that the CR17 record be sealed for reasons that were not disclosed.

Ledwaba sealed the bank statements and said that anyone who wished to challenge his directive should bring a court application to do so.

The EFF were not a party to the case at the time that this sealing occurred, but did not bring a formal application to challenge it when the Ramaphosa CR17 case was argued.

Sardiwalla is clearly interested in what reasons Ledwaba had for sealing the CR17 record and asks if there was any transcript that recorded such reasons.

"I see nothing presented to me that provides me with that kind of information," he says.

- Karyn Maughan

16 March 12:07

The Financial Intelligence Centre has stressed that it can only provide the intelligence it gathers to certain "legislated institutions, and only if the FIC reasonably believes such information is required to investigate suspected unlawful activity".

While the Public Protector's office is one of these institutions, the FIC says, the EFF is not.

Advocate Kameel Premhild, for the EFF, now seeking to challenge that argument.

He contends that the Public Protector was under an obligation to "amass evidence" to reach a decision in her investigation and then to present that evidence, in a way that was publicly accessible, when that investigation report was taken on review.

- Karyn Maughan

16 March 12:03

Advocate Premhid describes that, in terms of Rule 53 of the court, the Public Protector must file "everything she considered" in reaching her conclusions in the report when a review is filed.

Previously, lawyers for the President pointed out that the FIC report was only ever supposed to be used as "intelligence" and not "evidence". Premhid submits that the Public Protector had an obligation to file the FIC Report, to which the bank records are attached. He submits that the president asserted a "nebulous right to privacy" over the records.

- Kyle Cowan

16 March 12:00

Semenya says conduct of Public Protector Busisiwe Mkhwebane in the CR17 case, which has come under attack from the CR17 fundraising committee, is not an issue that needs to be decided on by this court.

The CR17 campaign – and Ramaphosa himself – have questioned why Mkhwebane included the FIC report and the bank statements attached to it, as well as private emails, in her record of the material that led to her now invalidated report on the CR17 funding.

"The Public Protector was guilty of misconduct," the CR17 fundraising committee now argues.

"First, she openly defied the FIC's direction in the cover letter to the FIC Report [that its report not be used in legal processes without it being forewarned]. Second, she manipulated the disclosure of the Rule 53 record in an attempt to ensure that it was publicly disclosed. All of this was in violation of the FIC Act."

Mkhwebane is not participating in this case – but she has challenged the invalidation of her CR17 report in the Constitutional Court. She has previously contended that the CR17 record should be available to the public.

- Karyn Maughan

16 March 11:57

While Semenya earlier argued that the Public Protector's conduct does not come into the equation in unsealing the statements, he now tells the court that the PP submitted the #CR17 banks statements in line with court rules and did not contravene any law. Tweet from @AlexMitchley

16 March 11:56

Advocate Kameel Premhid takes over from Advocate Semenya to argue the EFF's case further.

He moves straight into dealing with how the bank records were sealed - he argues that no substantive motion was brought to seal the records, and that deputy judge president Aubrey Ledwaba took a "pragmatic" decision to seal the records during case management.

- Kyle Cowan

16 March 11:53

I recall, Karyn, that we were both at court on the day that lawyers for the Public Protector filed the Rule 53 record.

Incidentally, deputy judge president Ledwaba had asked for all records to be filed to his office directly, but the Public Protector proceeded to file the record with the registrar. But we had no luck in actually getting our hands on the record.

- Kyle Cowan

16 March 11:50

The EFF also points out that both both Donne Nichol and Bejani Chauke who worked on the CR17 campaign and made donations toward the campaign are now both advisors to Ramaphosa in his capacity as President of South Africa. Tweet from @AlexMitchley

16 March 11:49

In court papers, CR17 campaigner and Ramaphosa's special advisor Bejani Chauke slammed the EFF case for the disclosure of the CR17 bank statements as being driven by "narrow political ends" rather than genuine public interest.

Chauke said the statements in question were contained in a Financial Intelligence Centre report that was "unlawfully filed" by Public Protector Busisiwe Mkhwebane, in her failed bid to defend the legality and validity of her report on the President’s campaign funding.

The FIC does not want its report disclosed because it contains intelligence, not evidence - but Semenya says its opposition to the EFF case is "curious".

- Karyn Maughan  

16 March 11:47

Comment: While I do not doubt that there are questions to be answered around the CR17 campaign, my reporting and the work of other journalists, have not yet found the so-called smoking gun that shows, as counsel for the EFF is arguing, that there are dots to be connected around the funding of the CR17 campaign and the "governance of the country".

Making those allegations without proof, is not inspiring confidence in the EFF's position here.

- Kyle Cowan

16 March 11:46

Semenya points out that both Donne Nichol and Bejani Chauke – who were both involved in the CR17 campaign and contributed toward it - now serve as advisors to President Ramaphosa.

He suggests there may be "dots to be joined there".

Important to note that Ramaphosa is not participating directly in this case, but is instead supporting the CR17 campaign funding committee in opposing the case bought by the EFF.

- Karyn Maughan

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