What is EFF’S party funding quest?
Its court application to force disclosure of donations to Cyril Ramaphosa may mask a bid to portray him as a capitalist puppet
The paper trail of donations to President Cyril Ramaphosa’s campaign to become president of the ANC is probably negligible compared with the tome Deputy Chief Justice Raymond Zondo will write on state capture. Still, those implicated are banking on it as a counterweight.
In less than a fortnight, the high court in Pretoria will hear argument from the Economic Freedom Fighters for the unsealing of the CR17 campaign funding records. The EFF is familiar with the contents, in as far as embattled public protector Busisiwe Mkhwebane controversially brought them to light.
It was party to the litigation between Ramaphosa and Mkhwebane over her report on the campaign, which saw the high court hand down one of several damning judgments that now form part of the case for her impeachment by parliament.
Mkhwebane was asked in 2018 to investigate Ramaphosa for misleading parliament when he responded to an opposition party question about the payment of R500000 to CR17 by Bosasa as if the money was a consultancy fee earned by his son Andile. A few day later, the president revised his answer and confirmed it came to his campaign but added that he had not known of the donation because such was run at arm’s length.
Mkhwebane then exceeded her mandate by investigating the entire CR17 campaign and concluded that the flow of millions of rands to it raised suspicion of money-laundering, which must be investigated.
Moreover, she said, “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.
Last year, the high court in Pretoria
set the report aside. It found that Mkwebhane had acted recklessly and irrationally and failed to process facts fairly.
The ruling put paid to Mkhwebane’s directive that the president must disclose all funding of the campaign to parliament. One of the grounds on which the court struck down the report and remedial action was that the public protector can probe executive actions involving public funds but the campaign, and intra-party funding, falls in the private domain.
But the case has spawned a sequel, at once legal and political. In filing her record of decision, Mkhwebane submitted bank statements reflecting financial transfers to Ramaphosa’s campaign effort.
The president’s lawyers in early August wrote to North Gauteng Deputy Judge President Aubrey Ledwaba asking him to seal part of the record that concerned “documents and/or information relating to the bank statements” of the campaign.
They said it reflected confidential third-party information and there was reason to believe that some of it may have been unlawfully obtained.
Notably, the legal team challenged
Mkhwebane’s submission that she subpoenaed it from Standard Bank. The bank denies this.
The Financial Intelligence Centre (FIC) warned Mkhwebane that information it released to her constituted intelligence and not evidence with which she could do as she pleased.
Ledwaba sealed the full record, pending an agreement between the parties on which part would remain so. In a letter dated 14 August, by which time there was still no agreement, he directed Mkhwebane to file her record to his office and not to the registrar as is the rule, on 15 August.
Mkhwebane promptly filed the record with the registrar.
Ledwaba then directed that the record be transferred to his office, that the FIC report remain sealed and that any party who wished to challenge this should do so in court.
Neither Mkhwebane nor the EFF did so in the initial litigation. But late last year, the party brought a separate application seeking to force the disclosure of the records of four bank accounts linked to Ramaphosa’s campaign, obtained from the FIC.
In court papers, it argues that this is in the public interest because secrecy about the funding that helped
Ramaphosa to high office created a risk that he could be “captured”.
“Without knowing how private money influences our public life, the suspicion of corruption is greater. Transparency, openness and accountability act as a guard against this. Disclosure is the means to the end.”
In answering court papers, the president’s attorneys note that, despite Ledwaba’s instructions, the FIC report appeared to have been leaked to the media. The information now the public domain included emails showing that Ramaphosa was at times involved in soliciting donations, and hints that the funders included Greek shipping magnate Tony Georgiades, who contravened apartheid-era sanctions, and Sir Mick Davis, the former chief executive of Britain’s Conservative Party.
These emails were never part of the court record and how they came into Mkhwebane hands is a matter of easy political speculation.
The EFF says the bank records and related documents are part of her record of her decision in the initial review case, and should by default be open as per Rule 53 of the General Rules of Court.
But the FIC’S lawyers counter, with the president’s in full agreement, that the EFF cannot force the disclosure of the information because the party throughout the original case refused as much. It notes that at the time, the EFF never objected.
“The information can only be disclosed for the purposes set out in the FIC Act. The EFF does not bring itself within the Act. This really should be the end of the matter,” the presidency’s lawyers argue.
It is preposterous, they add, that the EFF should portray itself as seeking to hold the president to account when constitutionally this responsibility resides with parliament.
The court wrangle is playing out weeks after Ramaphosa signed into law the Political Party Funding Act. The EFF’S arguments for transparency in all forms of political funding have support from worthy quarters.
Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution, said there was a strong case to be made for broader transparency in intra-party donations and legal framework enforcing this on all parties, including the opposition.
The context of the story includes developments in criminal courts and before the Zondo commission, involving Ramaphosa’s political foes. On Tuesday, former Eskom chief executive Brian Molefe repeated his claim that the president’s former business partners and his backers in his bid for control of the ANC suggested he might be compromised.
Last week, the Zondo commission, which has taken an interest in Malema’s finances, heard that a forensic investigation into money flows in the VBS Mutual Bank scandal was near complete.
Political analyst Richard Calland said the funding’s facts were almost incidental in this attempt to create a new narrative for state capture evidence, this time with the president as the prime suspect. “It is not what is actually in the records ... but to perpetuate the idea that Ramaphosa is himself ‘captured’ by white monopoly capital and to thereby distract from the real state capture perpetuated by the RET [“radical economic transformation”] brigade.”
Naidoo said Ramaphosa may be asked about his private funding. at the Zondo commission. “And if that happens, he will have to answer.”
Acommunity of land claimants whose property is at the centre of a tug of war with land invaders, who claim to have bought plots from traditional leaders, has been forced to take matters into their own hands after different state organs have repeatedly failed them.
The land on Enkeldoorn farm near Kwamhlanga in Mpumalanga is part of a large tract that was successfully restored to the Mmotoaneng Community Trust through the land restitution process in 2019.
However, it is now the subject of a stand-off between the owners and land invaders, who have set up shacks on the land.
The Mmotoaneng are using the land for agriculture and have plans to expand their operations. The invaders, who are setting up shacks and cutting up plots even on the cultivated land, claim to have been sold portions for R5 000 each by representatives of the Kwamanala Traditional Authority.
Illegal sand miners have also claimed to have been granted permission by the Kwamanala Traditional Authority, and have also been accused of threatening the community of farmers.
Farmer Phillip Nkopodi Nkoana pointed to a large area in the distance where the teeth of earth-moving machinery have left a gaping red scar where his grandfather’s homestead once stood.
David Aphane, the spokesperson for the Mmotoaneng Community Trust, said they approached the illegal sand miners, but were threatened with guns and told the land belongs to inkosi and that the Mmotoaneng have been paid by the state, so they had no claim to the land.
The Mmotoaneng Trust was paid R28-million by the Commission on Restitution of Land Rights for land that was found not to be restorable because it was already fully built up, occupied and included public places. The trust was given the rest of the land to use for farming.
Aphane’s piggery, located on one of the portions adjacent to the area where invaders have set up shacks, has been vandalised and stripped bare.
Nkoana said he had been forced to move some of his farming operations to another portion of land after more than 12 cattle and 50 goats were stolen. He said vandals also removed fencing around a dam, which led to some of his cattle falling into it and drowning. He said he reported the matter to the Kwamanala authorities, but he was insulted instead.
“We don’t know what to do any more, because no one seems interested to help us,” he said.
In June last year, the high court in Pretoria issued an interdict and restraining order against the Kwamanala Traditional Authority, Chief Jabulani Mabena and Chief Makodhongo Mahlangu after an application brought by the Mmotoaneng Trust and its chairperson, David Mawela.
The court interdicted and restrained three of six respondents
“from unlawfully allocating residential and/or any sites to their subjects and/or any third party on the property as described Farm Enkeldoorn 217 and allowing their subjects and/ or any third party to unlawfully enter and occupy the said sites on the property belonging to the first applicant [Mmotoaneng Community Trust].”
It also ordered that Kwamanala, Mabena and Makodhongo “refrain
from declaring themselves the owners of the property described as Farm Enkeldoorn 217”.
The three other respondents are the Ndzundza Mabhoko Traditional Authority, Thembisile Hani local Municipality, and the property’s unlawful occupiers.
Three months later, the Mmotoaneng Trust paid R8466.30 in sheriff charges in an order signed by the acting sheriff, Maggy Phiri, in Groblersdal. Aphane said the sheriff has, however, failed to evict the illegal occupiers.
Sheriff Philip Phiri has not responded to queries about why the sheriff’s office had not carried out the order, despite having received the payment, and whether anyone had prevented them from evicting the illegal land occupiers.
Furthermore, the police have failed to act against the occupiers, despite several cases being opened. In desperation, the trust approached the South African Human Rights Commission (SAHRC) to intervene.
Aphane said officials from the SAHRC conducted an in-loco inspec
tion on the property in November. But Mpumalanga SAHRC provincial commissioner Eric Mokonyama also failed to respond to repeated enquiries.
Mpumalanga police spokesman Brigadier Leonard Hlathi was asked why the Kwamhlanga South African Police Service (SAPS) failed to act after the trust opened three cases involving the matter. He, like the others in the others in the province, did not want to answer.
However, Aphane told the Mail & Guardian, a few days after our inquiry with Mpumalanga police, they had been contacted by the Kwamhlanga SAPS inquiring about the previous cases they had opened.
“There has been some activity with police calling us wanting to reopen cases. We were surprised. They have also been responding, chasing those men with ‘stands for sale’ boards away. Otherwise, the invaded area is still like that, and the sheriff [is] still not acting,” Aphane said last week.
“Our community debated installing
private security and trust that they will use force to counter the force used by the land thieves, as police clearly can’t handle them. Recently, the community is trying to mobilise our own strong men to challenge the
men [allegedly] sent by the chiefs, and this seems to be the way to go. We are helpless as we watch while our land is being taken,” Aphane said.
The province’s spokesperson for the department of co-operative governance
and traditional affairs, George Mthethwa, also did not respond to repeated inquiries about what action the department was likely to take after having been approached by the trust to intervene.
Thembisile Hani local municipality spokesperson Simphiwe Mokako said, “The municipality did not take any step because there was no relief sought against it in the notice of motion, including the court order.”
She said the land belongs to Mmotoaneng Community Trust, which is now private land and, therefore, the municipality cannot make any plans for private land.
“It is the responsibility of the Mmotoaneng Community Trust to evict the land invaders,” she said in response to the question of whether the municipality had a plan to deal with invasions on the property.
One of the Mmotoaneng farmers born on the land, Tlhaki Petrus Mmako, is worried that allocating residential stands on the land threatened their business and food security.
“Dit was nie nodig nie,” Mmako said about the setting up of shacks on land they intend to use for both crop and stock farming.
“People are building shacks on our fields. There will come a time when people have lots of money, but then there will be no food to buy with that money because shacks would have taken up all the farming land.”
Aphane said bands of men have arrived on the land in kombis and threatened the Mmotoaneng community while installing new tenants on the land. In January, one of the mobs allegedly hijacked a tractor sent to prepare the land for ploughing as part of the government’s assistance to small-scale farmers. Nkoana said the same men have also threatened him.
With the authorities failing to act in the stand-off, Aphane said the community is now forced to explore alternative options.
“We initially trusted that we have full protection [from the law] as the rightful claimants, until we realised that there seem to be bigger forces than we thought,” Aphane said.
“First, the land claim commission required that we drive our claim through the courts; then, the local police seemed helpless and referred us to the traditional authority, where we were met with the challenge that they regard the land as belonging to the king. Then the fight for our land began as we sought help through all other agencies, including the [South African] Human Rights Commission, but every time our case seems to stall at some level.” — Mukurukuru
This article was possible due to the support of the German federal foreign office and the Institut für Auslandsbeziehungen (IFA) Zivik funding programme. The views presented in this article do not represent the views of the German federal foreign office nor the IFA