AmaBhungane served papers yesterday setting out its case for joining the politically fraught battle between the president and the public protector.

Ramaphosa emerged victorious in December 2017 after a close-fought campaign to succeed Jacob Zuma as ANC leader, narrowly defeating Zuma’s ex-wife, Nkosazana Dlamini-Zuma.

Since then resistance to Ramaphosa’s administration has coalesced most starkly around the figure of Mkhwebane – widely perceived as sympathetic to Zuma – whose office has been used to launch a raft of complaints against Ramaphosa and some of his senior cabinet allies.

Mkhwebane used complaints about a donation by Bosasa, the controversial ANC-linked facilities management company, to expand her probe into the entire Ramaphosa CR17 campaign funding machine, which spent hundreds of millions.

In July this year Mkhwebane issued her report, accusing the president of deliberately misleading parliament about the Bosasa donation and ruling that he violated the Executive Ethics Code by failing to disclose the benefit which accrued to him by way of donations to the CR17 campaign.

Ramaphosa successfully interdicted the remedial actions ordered by Mkhwebane, pending the outcome of his Pretoria high court challenge to set aside her report and findings.

He also requested that bank statements and emails contained in the court record be sealed and not be disclosed to the public, although they had already been leaked to the media. Ramaphosa argued they had been obtained by Mkhwebane improperly or for an ulterior purpose – and were protected by the Protection of Personal Information Act (Popi).

Enter amaB.

Ramaphosa’s case turns on the interpretation of the Executive Ethics Code, which his lawyers will argue does not include donations to internal party campaigns such as CR17.

As amaBhungane pointed out here, precedent supports Ramaphosa’s interpretation, in that a parliamentary committee looking at a similar case involving former Democratic Alliance leader Mmusi Maimane found that the comparable code of conduct for MPs was too vague to clearly encompass internal campaign funding.

That is precisely the point that amaBhungane is intervening to take up.

In our application amaBhungane does not seek to enter into the debate regarding the proper interpretation of the ethics code, but rather asks the court to find that, to the extent that the code is found not to cover such donations, it should; indeed the failure to provide for mandatory disclosure of such donations would render the code unconstitutional and invalid.

That is because, as the CR17 campaign clearly showed, internal party campaigns are a huge business and donations can have a profound effect on the outcome – and therefore the leadership and direction of a ruling party.

As we put it in our founding affidavit: “The risks inherent in non-disclosure threaten the very functioning of the democratic system. Unaccountable people and entities with unknowable resources bring potentially extraordinary influence to bear on policy and the elected officials they have sponsored.”

There is ample legal support for such a position.

Chief Justice Mogoeng Mogoeng, writing for the majority in the My Vote Counts 2 judgment, held: “When elected public office-bearers are illegitimately dictated to, that is likely to poison the broader political landscape and governance, thus weakening or throttling our shared values and constitutional vision. Lack of transparency on private funding provides fertile and well-watered ground for corruption or the deception of voters.”

We have asked the court to suspend a declaration of constitutional invalidity of the ethics code for 12 months, to give parliament an opportunity to close the gaping hole in the disclosure fence.

We have also asked the court for permission to give input where necessary on the relevance of privacy and Popi Act.

Whether the public protector acted lawfully and properly is one issue, but it is quite another matter to attempt to use the court and Popi to retrospectively plug the CR17 leaks – or lay down principles that would undermine the principle of open justice.

As we note: “It is certainly not the case that once a document contains “personal information” which is improperly obtained, it follows ineluctably that the court must prevent the document from being publicly disseminated. Indeed, laying down such a novel principle would have far-reaching and deleterious effects.”

For further comment please contact:

Sam Sole – 082 4188944
Stefaans Brümmer – 083 2747438
Karabo Rajuili – 082 3656553