Ramaphosa and pro­tec­tor in stand­off

Dis­pute be­tween pres­i­dent and pub­lic pro­tec­tor over fund­ing ev­i­dence due to come to a head

Business Day - - FRONT PAGE - Karyn Maughan

A stand­off has de­vel­oped be­tween lawyers for Pres­i­dent Cyril Ramaphosa and pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane over the ev­i­dence she used to make her po­lit­i­cally ex­plo­sive find­ings about Ramaphosa’s ANC elec­tion cam­paign fund­ing — and whether or not it should be made pub­licly avail­able.

A stand­off has de­vel­oped be­tween lawyers for Pres­i­dent Cyril Ramaphosa and pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane over the ev­i­dence she used to make her po­lit­i­cally ex­plo­sive find­ings about Ramaphosa’s ANC elec­tion cam­paign fund­ing

— and whether or not it should be made pub­licly avail­able.

While Ramaphosa has pub­licly stated that he did not want to com­ment on Mkhwe­bane’s mo­tives in in­ves­ti­gat­ing who funded his cam­paign, ac­cu­sa­tions by his le­gal team that the pub­lic pro­tec­tor may have used un­law­fully ob­tained ev­i­dence to make far-reach­ing find­ings of al­leged money-laun­der­ing and po­ten­tial con­flict of in­ter­est against him have upped the ante in the pres­i­dent’s le­gal bat­tle with the Chap­ter 9 in­sti­tu­tion.

Her in­ves­ti­ga­tion found that Ramaphosa had mis­led par­lia­ment about a R500,000 dona­tion to his cam­paign from con­tro­ver­sial com­pany Bosasa.

On Mon­day, Ramaphosa se­cured an in­ter­dict stay­ing the im­ple­men­ta­tion of the pub­lic pro­tec­tor’s re­me­dial ac­tion against him.

The dis­pute over whether her ev­i­dence will be made pub­lic any time soon will come to a head on Thurs­day morn­ing, when deputy judge pres­i­dent Aubrey Led­waba is sched­uled to meet lawyers for both par­ties.

Led­waba on Wed­nes­day is­sued a di­rec­tive that the record be kept in his of­fice pend­ing the res­o­lu­tion of this lat­est im­passe. That means that, while there is no court or­der pro­hibit­ing pub­lic ac­cess to Mkhwe­bane’s ev­i­dence around Ramaphosa’s ANC cam­paign fund­ing, it has ef­fec­tively been sealed.

Ramaphosa’s lawyers on Fri­day wrote to Led­waba to ask that parts of the Rule 53 record filed by Mkhwe­bane, in which she pro­vided ev­i­dence she used to make her find­ings against Ramaphosa, not be made pub­lic, pend­ing a de­ter­mi­na­tion of how they were ob­tained.

On Wed­nes­day, Mkhwe­bane’s lawyers sent a terse re­sponse to Ramaphosa’s le­gal team, in which they made it clear that she dis­agreed with ef­forts by his team to en­sure that ev­i­dence she used against him in her re­port on his ANC elec­tion cam­paign be sealed.

“You will note that the only ba­sis of your request is that you ‘have rea­son to be­lieve that cer­tain doc­u­ments may not have been law­fully ob­tained by the pub­lic pro­tec­tor’,” Mkhwe­bane’s lawyer Theo Seanego wrote to Ramaphosa’s at­tor­ney Peter Har­ris.

“We re­gard this as a very se­ri­ous al­le­ga­tion against the pub­lic pro­tec­tor. Yet it is made with­out any ref­er­ence to ev­i­dence what­so­ever.

“Fur­ther, this ac­cu­sa­tion has been re­peated in pub­lic state­ments is­sued by the pres­i­dency. It is en­tirely un­founded and with­out merit,” he wrote.

While Ramaphosa’s lawyers have asked Led­waba to en­sure that the bank state­ments of ac­counts linked to his elec­tion cam­paign be sealed “as these doc­u­ments con­tain con­fi­den­tial in­for­ma­tion be­long­ing to third par­ties” (Ramaphosa’s fun­ders), Seanego says this let­ter “does not con­sti­tute an ap­pli­ca­tion, nor does it state why your client (Ramaphosa) deems it ap­pro­pri­ate to rep­re­sent third par­ties who have not in­di­cated any op­po­si­tion to the dis­patch­ing of the record”.

Seanego ar­gues that while Ramaphosa “has con­sis­tently con­tended that he ‘was kept in the dark’ about the iden­ti­ties of the donors and the de­tails thereof, it is there­fore puz­zling that he seeks to act on their be­half, and with­out any fac­tual or le­gal ba­sis what­so­ever”.

The pres­i­dency de­clined to com­ment on Seanego’s let­ter or re­spond to ques­tions about whether Ramaphosa’s lawyers could prove that the pub­lic pro­tec­tor had ob­tained the ev­i­dence un­law­fully.

Ramaphosa main­tains that Mkhwe­bane had no le­gal ba­sis to in­ves­ti­gate his cam­paign fund­ing, and ar­gues that her money-laun­der­ing find­ings are legally and fac­tu­ally ill-con­ceived and base­less.

He in­sists there is no le­gal obli­ga­tion on him to dis­close who funded his cam­paign.

But, while Ramaphosa fights Mkhwe­bane’s or­der that he be forced to dis­close the iden­ti­ties of his fun­ders to par­lia­ment, leaks of cam­paign bank state­ments and e-mails have meant that the iden­ti­ties of these fun­ders are al­ready pub­lic knowl­edge. The pres­i­dency has strongly sug­gested that it be­lieves Mkhwe­bane’s of­fice may be be­hind these leaks, but, at this stage, nei­ther Ramaphosa nor his lawyers know ex­actly what ev­i­dence she ac­tu­ally has, or even whether it is the same ev­i­dence that was given to me­dia out­lets.

/Sun­day Times

Bat­tle con­tin­ues: Pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane has been ac­cused by Pres­i­dent Cyril Ramaphosa’s lawyers of pos­si­bly hav­ing un­law­fully ob­tained ev­i­dence.

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