Cyril Ramaphosa, left, and Busisiwe Mkhwebane. Pictures: SUPPLIED
Cyril Ramaphosa, left, and Busisiwe Mkhwebane. Pictures: SUPPLIED

Investigative journalism unit amaBhungane has entered the fray in the highly politicised court battle between President Cyril Ramaphosa and public protector Busisiwe Mkhwebane, arguing that the code governing the ethics of the executive is unconstitutional.

If Ramaphosa was under no obligation to disclose the funding of his campaign to become president of the ANC, then the executive ethics code was unconstitutional, the high court in Pretoria heard on Wednesday.

A full bench comprising judge president Dunstan Mlambo and judges Keoagile Matojane and Raylene Keightley heard the case on Tuesday and Wednesday.

The court battle included Ramaphosa, speaker of the National Assembly Thandi Modise and Shamila Batohi, the national director of public prosecutions. They were all arguing against aspects of public protector Busisiwe Mkhwebane’s report on the investigation initiated after Ramaphosa misled parliament on the R500,000 Bosasa donation received by the CR17 campaign. The campaign funded his bid to become president of the ANC.

Bosasa, now known as African Global Operations, and its CEO, the late Gavin Watson, were frequently mentioned as having a corrupt relationship with the ANC-led government at the state capture inquiry under deputy chief justice Raymond Zondo.

Mkhwebane was supported in the court case by opposition political party the EFF.  

Ramaphosa has asked the high court in Pretoria to review and set aside the report and remedial action based on Mkhwebane’s investigation into whether he deliberately misled parliament over the donation.

In her investigation, Mkhwebane broadened the scope of the investigation to include a wider probe into the funding of his entire campaign for the ANC presidency in 2017. Mkhwebane concluded that there was merit to allegations of money laundering and found that Ramaphosa had violated the executive code of ethics and may have exposed himself to a conflict of interest in receiving certain donations.

But amaBhungane’s interest in the matter, as detailed by its lawyer, Steven Budlender SC, was much broader than Ramaphosa’s application and that of the speaker and director of public prosecutions.

Budlender said the amaBhungane application was not about Ramaphosa but about a full-frontal constitutional challenge on the code. The unit did not want such an order to be retroactive and has asked that it be suspended for 12 months so that the defects can be cured.

“What this court’s judgment may well determine is whether a president, deputy president or premier must disclose internal donations received,” Budlender said.

He said the code requires gifts valued at more than R350 to be disclosed but not the millions of rand politicians received for their internal political party campaigns. He said if the court agrees that it was not necessary to disclose internal donations in terms of the code, it must then find that it is unconstitutional and declare the code invalid.

Vincent Maleka SC, counsel for the EFF, went a step further, saying Ramaphosa was already obliged to make the disclosure after the My Vote Counts judgment in the Constitutional Court, which held that political parties should record private funding information and give the public reasonable access to the information.

Ramaphosa’s counsel has been adamant that Mkhwebane did not have jurisdiction to look into the campaign donations as they were private funds for an internal campaign, but Maleka said he had an ethical duty to do so.

He said private political funding was not outside the realm of the public protector, as Ramaphosa aspired to be president of the ANC with that money, which in turn resulted in him becoming president of the country. He said as a result of this it had a direct effect on SA’s democratic order.

Mlambo asked Maleka whether he wanted the court to read into the My Vote Counts judgment (which referred to the funding of political parties) to include the private funding of internal campaigns as well, to which Maleka answered affirmatively.

While Budlender did not agree with the assertion that Ramaphosa was obliged to make the disclosure as a result of the My Votes Counts judgment, he said the judgment does inform the answer to the constitutional question the court would have to answer.

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