Mkhwebane’s report poses a threat to Ramaphosa’s leadership
Busisiwe Mkhwebane’s report on the Bosasa donation to Cyril Ramaphosa’s presidential campaign will only add to his already sizeable woes. But it could also pose a significant threat to his leadership
When President Cyril Ramaphosa delivers his state of the nation address this week, he will do so under the oppressive weight of an ailing economy, which contracted 3.2% in the first quarter, terminally ill state-owned entities and an ANC that is clearly not united behind him.
Just hours later, Ramaphosa will need to respond to what is arguably the greatest threat to his leadership: public protector Busisiwe Mkhwebane’s report on the R500,000 donation the president received from Bosasa, the facilities management company under scrutiny for alleged corruption.
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Mkhwebane is examining whether Ramaphosa deliberately lied to parliament about the donation — which would amount to a breach of the executive ethics code. Under the Powers, Privileges & Immunities of Parliaments & Provincial Legislatures Act, wilfully providing parliament with false or misleading information — or wilfully making statements to that effect – carries a maximum two-year prison term, a fine, or both.
Ramaphosa initially said the payment was made to his son Andile in terms of a consultancy contract. He later wrote to then parliamentary speaker Baleka Mbete to "correct" his statement, admitting the money was, in fact, a donation from Bosasa CEO Gavin Watson to his campaign for the ANC presidency.
Ramaphosa says his son told him that in December 2017 — the same month he was elected to lead the ANC — Andile’s company, Blue Crane Capital, "had signed an advisory mandate with African Global Operations [formerly Bosasa] for possible business entry and activities in some East African countries".
He says: "I had no reason to believe that there was anything untoward about the relationship."
The president has stressed that he was not previously aware of, or involved in, these agreements, and he had opted not to know who made donations to his campaign.
"A deliberate decision had been taken by myself and those leading the campaign that I would not be involved in fundraising even as I would address meetings and have a few dinners with potential funders," he says in a statement to Mkhwebane. "We had also decided that I would not be provided with the identity of donors or the amounts pledged, as I did not want to feel under obligation to them in any shape or form at any time in the future."
That decision may come to cost Ramaphosa dearly.
Bosasa and Watson — following testimony from former Bosasa COO Angelo Agrizzi at the Zondo commission of inquiry into state capture — became synonymous with the alleged corruption of leading ANC officials in exchange for multibillion-rand state contracts.
As someone who has repeatedly aligned his leadership of the ANC and the country with a drive to "clean up" a corruption-ridden government, the president’s admission became powerful ammunition for his opponents both outside and within the ANC.
Now he has been implicated in Mkhwebane’s investigation, which also examines whether the convoluted way in which Watson made the donation amounted to money laundering.
The public protector confirmed in a letter sent to DA leader Mmusi Maimane — who laid the original complaint — that the president had been formally notified of her findings against him.
That confirmation — and Mkhwebane’s announcement that public enterprises minister Pravin Gordhan has been implicated in a separate investigation — has raised eyebrows.
Mkhwebane’s office says it disclosed her findings against Gordhan in its SA Revenue Service "rogue unit" investigation to counter the minister’s own media campaign against her. She denies charges by Gordhan’s lawyers that her actions — shortly before Ramaphosa announced his new cabinet — were unprecedented.
In a video posted on social media, Mkhwebane says former public protector Thuli Madonsela did the same in her investigation into upgrades at former president Jacob Zuma’s Nkandla homestead.
However, Madonsela insists there is no precedent from her tenure to justify this. She further questions why Mkhwebane previously released nearly 100 reports without in advance announcing that any parties had been implicated, and then, in the Gordhan and Ramaphosa matters, "justified [this] on my nonexistent precedent".
Though Madonsela acknowledges that her office gave public notice of provisional reports, she says it never publicly announced "section 7(9) notices", which inform people they have been implicated.
Madonsela says if an implicated person had provided her staff with evidence that exonerated him or her, they would not want the person’s reputation to be unfairly besmirched through the public protector identifying them as implicated.
"Nor would we want the public to be left with the impression that we had succumbed to political pressure and wrongfully exonerated the implicated person."
In other words, by publicly confirming Ramaphosa’s implication in her Bosasa investigation just days before the state of the nation address and before hearing any response from him, Mkhwebane may have painted both herself and Ramaphosa into a dangerous corner.
Mkhwebane, already facing accusations of bias and incompetence, will find it difficult to backtrack if Ramaphosa produces evidence to exonerate himself. She has left herself open to accusations, on the one hand, of bowing to political pressure if she changes her mind; on the other, of unfairly tarnishing Ramaphosa’s name.
Meanwhile, it appears Ramaphosa is quietly preparing for a worst-case scenario. His office has said it is "quite disappointed" that Mkhwebane refused his request to cross-examine Maimane — the source of the parliamentary question that landed him in trouble in the first place, according to the presidency.
"While we accept [Maimane] is not a witness, he is complaining about an answer to a question that he himself posed. The source and content of that question are directly relevant to the answer given," says presidency spokesperson Khusela Diko.
"In fact, we believe that he, not the president, misled parliament by conflating many issues and posing a question riddled with many factual inaccuracies … Maimane’s conduct on the day in parliament is relevant to any fair assessment of the president’s response."
This statement is telling for two reasons. First, it would appear to confirm that Mkhwebane has indeed found that the president misled parliament — the most serious finding ever made against a sitting president by a public protector.
Madonsela herself shied away from making such a finding in her Nkandla investigation. Zuma had been accused of deliberately lying to parliament by telling MPs his family had built its own houses without state assistance or benefits.
"This was not true," Madonsela found. "It is common cause that in the name of security, government built for the president and his family at his private residence a visitors’ centre, cattle kraal and chicken run, swimming pool and amphitheatre among others. The president and his family clearly benefited from this."
Importantly, though, Madonsela accepted that Zuma had "addressed parliament in good faith and was not thinking about the visitors’ centre, but his family dwellings when he made the statement".
She said: "While his conduct could accordingly be legitimately construed as misleading parliament, it appears to have been a bona fide mistake and I am accordingly unable to find that his conduct was in violation of … the executive ethics code."
Second, Diko’s statement suggests the presidency is preparing a legal challenge to Mkhwebane’s final report — should she uphold an initial finding that Ramaphosa misled parliament. And that potential challenge could rest, in part, on an attack on Maimane.
According to Diko, Maimane "created confusion" in the way he asked Ramaphosa about the Bosasa payment: it was a follow-up to a written question about the then unfolding VBS Mutual Bank saga.
"Maimane asked a follow-up [question] which ‘pretended’ to be about VBS but actually had nothing to do with the original question," Diko says. He also referred to an affidavit by auditor Peet Venter, whose company was contracted by Bosasa, that "was not verified or factual".
Venter’s affidavit described how he had made the R500,000 payment to Andile on instruction from Watson. He later told the Zondo commission he had signed this affidavit "under duress" from Agrizzi — a charge Agrizzi denies.
The presidency says Maimane also told parliament that Andile had an Absa account when he did not, and claimed that the "EFG2 account" into which the R500,000 was paid "belonged to Andile when it did not".
Maimane considers these issues "irrelevant" to his complaint, and has hit out at Ramaphosa for using "Zuma-style tactics by delaying justice and making demands that are not lawful".
It’s a charge that highlights Ramaphosa’s dilemma: should he challenge an adverse public protector process and finding, he may be accused of taking a leaf from Zuma’s playbook.
"If Ramaphosa wishes to question any witnesses, he must begin with his son Andile," Maimane goes on. "[The president] has already confirmed receiving money from Bosasa in his letter written to parliament … Allegations of money laundering and misleading parliament are incredibly serious and I would urge [him] to co-operate with law enforcement agencies without delay."
However, Ramaphosa has repeatedly said he made a genuine mistake when he confused Watson’s campaign donation with a payment to his son’s consultancy from African Global Operations. "There is no improper relationship between me and my family on the one side, and African Global Operations on the other side," he says.
Mkhwebane does not appear to accept that explanation, for reasons that have yet to be publicly ventilated.
But it would seem, for the moment, that it is Ramaphosa who is under greater threat than Mkhwebane. The public protector may be under pressure following two court rulings that suggested she is either incompetent or biased, but she is not at present facing any inquiry into her fitness to hold office, and she has become increasingly outspoken in response to attacks on her integrity and ability.
For Ramaphosa, given recent rulings overturning Mkhwebane’s reports, the immediate challenge is likely to be political: that he be asked to step aside until the Bosasa saga is laid to rest in the courts.
The president is, undeniably, swimming in a shark tank — and even the faintest whiff of blood could prove deadly.