Starting tomorrow (Tuesday), the Pretoria high court will hear President Cyril Ramaphosa’s challenge to the public protector’s report on the Bosasa donation to CR17, the big-spending campaign that won Ramaphosa the ANC presidency.
The dispute includes questions of whether Ramaphosa can be faulted for initially giving wrong information to Parliament (an error he corrected); whether he should have disclosed donations to CR17 under existing rules, and whether Public Protector Busisiwe Mkhwebane obtained leaked CR17 emails improperly.
AmaBhungane has joined the matter as an intervening party – not to take sides, but to ensure that any decision the court makes will uphold transparency and the public’s right to know. AmaBhungane’s legal team will make this key argument to the court:
The public has a right to know who funds individual politicians’ campaigns for party leadership positions, and if the court holds the Executive Ethics Code not to provide for this currently, it should declare it to be unconstitutional so it can be remedied going forward.
Download our court papers here.
AmaBhungane makes this intervention as part of our mandate to help secure the information rights that are the lifeblood of investigative journalism, and in the public interest.
As an intervening party, we maintain our independence from all parties. We have no intention of being drawn into the actual dispute between the president and the public protector.
Nonetheless, it is vital that any decision by the court helps to secure greater transparency and ensure that journalists – at amaBhungane and beyond – can better inform the public on the influence of money in politics.
*For comment: Murray Hunter, 072 6725468.
In the years since Cyril Ramaphosa won his internal bid to become president of the ANC, and then South Africa, Public Protector Busisiwe Mkhwebane has made a raft of findings against Ramaphosa and some of his senior cabinet allies. She is widely seen as being sympathetic to the political forces aligned to former president Jacob Zuma.
In 2019, Mkhwebane used complaints about a donation by Bosasa, the controversial ANC-linked firm, to conduct an expansive probe of the entire CR17 campaign funding machine, which spent hundreds of millions.
Her report, issued in July 2019, declared that the president had misled parliament about the Bosasa donation and violated the Executive Ethics Code by failing to disclose the benefit which accrued to him by way of donations to the CR17 campaign.
Ramaphosa has approached the Pretoria high court to challenge her report and findings, arguing that the ethics code does not regulate donations to internal party campaigns such as CR17 – which may or may not be correct.
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, if the code is found not to cover such donations, it ought to.
We argue that 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.”
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.