Ramaphosa bank records must stay secret, says FIC
But EFF wants to see documents on cash for CR17 campaign
Unsealing confidential Financial Intelligence Centre (FIC) documents relating to President Cyril Ramaphosa’s CR17 campaign would reveal people’s most personal information and ultimately compromise the FIC’s ability to fight crime, the centre said in court papers filed on Friday.
The FIC is opposing an application by the EFF to unseal the court record in last year’s Pretoria high court battle between the president and the public protector.
The case was about the public protector’s investigation of whether Ramaphosa had misled parliament when answering a question about a donation from Bosasa’s Gavin Watson to the CR17 campaign. The campaign led to Ramaphosa being elected ANC president at the ANC’s 2017 national conference.
The complaint that public protector Busisiwe Mkhwebane was investigating was about a single donation. But during her investigation she obtained from the FIC bank statements for the entire CR17 campaign.
In her report she said the CR17 campaign had raised millions and remarked that there was a “risk of some sort of state capture by those donating these moneys to the campaign”.
When the president went to court to review and set aside her report, Mkhwebane put all the documents before the court, including the bank records. This would normally have brought the documents into the public domain, but on Ramaphosa’s request, deputy judge president Aubrey Ledwaba gave a directive sealing the bank records.
Earlier in the week, CR17 campaign manager Bejani Chauke filed answering papers on behalf of the campaign, saying the EFF, though claiming to be acting in the public interest, was “plainly pursuing narrow political ends”.
But the FIC’s stance, though also oppos
ing, was very different. Its director, Xolisile Khanyile, said the FIC was “neutral and nonpartisan in the litigation ... its interest in these proceedings is only the protection of its report from disclosure — as it is obliged to do in terms of the FIC Act”.
In her affidavit, Khanyile sets out when and how, under the act, information gathered by the FIC — normally highly confidential — may be disclosed. “None of the purposes advanced by the EFF ... is permissible and
recognised as a ground of disclosure.”
The FIC’s only interest was maintaining the confidentiality of the FIC report, said Khanyile. The bank statements were attached as annexures. The report contains extracts from “highly confidential” suspicious transaction and activity reports, she said.
Khanyile described the policy reasons for the strict confidentiality of FIC documents: they contain “most private information” — bank account details, signatories on the ac
counts and balances. They reveal who reported the suspicious transaction and why.
“Unrestricted and unjustified access to this information will violate [the] right to privacy of the affected individuals and is likely to compromise ... investigations.”
Most importantly, she said, the information obtained through suspicious transaction reports “remain [s], as the name suggests, mere suspicion” — until investigated further and evidence is obtained to support the sus-picion.
“If the FIC report is disclosed, that would create a precedent, which will result in the future demands by third parties of the disclosure of the FIC products. If that were to happen, the work of the FIC in combating crime would be compromised,” she said.
The EFF had claimed that it has a right to the information in terms of section 19 of the constitution.
Section 19 guarantees people’s rights to campaign for a political cause. But Khanyile said this was “tenuous”.
“The EFF cannot rely on section 19 to seek disclosure of the FIC report.”
The EFF’s case for why it had a right to the bank statements relied extensively on the Constitutional Court’s reasoning in the case about political party funding.
That case is known as My Vote Counts II and dealt with the need for transparency when it came to party political funding.
But Chauke said in his answering affidavit that My Vote Counts dealt with party political funding and not internal party campaigns.
EFF secretary-general Marshall Dlamini said the fundraising for the CR17 campaign could not be treated as a private matter because it was inevitable that whoever was elected at the ANC’s national conference would be president of the republic.
By “logical extension”, the private funding of CR17 could not be divorced from the republic, said Dlamini.
Chauke said Dlamini’s argument was conflating the campaign to elect the president of a political party with that of the president of the country. There was no such inevitability, he said.
“Taken to its logical conclusion, the principle will only apply to those politicians who ascend to certain offices ... but not to all politicians. That cannot be right. If there is a constitutionally imposed obligation to disclose such donations, it would apply generally and to all politicians; it cannot depend on whether one is ultimately elected to a certain office.”
Although some of the bank statements were leaked, this did not mean — as argued by the EFF — that the horse had bolted as far as protecting the record was concerned, said Chauke. “The fact that someone may have already violated the privacy rights, sought to be protected, cannot justify the further violation for which the EFF contends.”