President Cyril Ramaphosa insists he did not deliberately mislead parliament about the R500,000 donation he received from the CEO of corruption accused Bosasa group Gavin Watson, and immediately corrected his statements about that donation as soon as he realised they were not truthful.
Whether public protector Busisiwe Mkhwebane accepts that explanation or not will become apparent in the coming weeks, when she is expected to release her long-awaited report on the president and Bosasa, a facilities management company that received an estimated R10bn in government tenders through alleged corruption.
The stakes for both Ramaphosa and Mkhwebane are high.
Business Day has confirmed that Mkhwebane last week served Ramaphosa with a notification regarding the saga, which arguably represents the president’s greatest vulnerability in his drive to maintain control of a divided ANC.
Both the presidency and public protector’s office have refused to comment on the notification given to Ramaphosa, which he is expected to respond to in the coming days. Mkhwebane did, however, confirm on Monday that she had served Pravin Gordhan with a section 7(9) notice relating to her investigation into the debunked “rogue unit”.
Ramaphosa and Mkhwebane’s mutual reluctance to confirm the other notice is understandable. For Mkhwebane, facing multiple court challenges to her reports and the subject of several damning judgments that suggest she is biased or potentially incompetent, it is crucial that her Ramaphosa report withstands attack on its legality and rationality.
For Ramaphosa, trying to lead an ANC manifestly not fully in his corner, adverse findings from the public protector will arguably represent a potentially powerful weapon for his opponents.
Particularly if Mkhwebane finds that he deliberately lied to parliament.
It is important to remember that, up until now, no public protector has ever found that a president has lied to the National Assembly on purpose.
Former public protector Thuli Madonsela was asked to investigate whether former president Jacob Zuma deliberately lied to parliament when he told MPs that his family had built its own houses without state assistance or benefits.
“This was not true”, Madonsela found. “It is common cause that in the name of security, [the] government built for the president and his family at his private residence a Visitors’ Centre, cattle kraal and chicken run, swimming pool and amphitheatre among others. The president and his family clearly benefited from this.”
Importantly, though, Madonsela accepted that Zuma had “addressed parliament in good faith and was not thinking about the Visitors’ Centre, but his family dwellings when he made the statement”.
“While his conduct could accordingly be legitimately construed as misleading parliament, it appears to have been a bona fide mistake and I am accordingly unable to find that his conduct was in violation of paragraph 2 of the Executive Ethics Code,” she stated.
This is the same section of the code that Ramaphosa now faces scrutiny from Mkhwebane over.
It states that members of the executive may not “wilfully mislead the legislature to which they are accountable”. Further, section 17(2)(d) and 17(2)(e) of the Powers, Privileges and Immunities Act says that any person who “wilfully furnishes a House or committees with information, or makes a statement before it, which is false or misleading commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or to both the fine and imprisonment”.
Ramaphosa has consistently maintained that he had no intention to mislead parliament when he told the National Assembly in 2018 that his son Andile had received money from Bosasa —now trading as African Global Operations — for services rendered in terms of a consultancy contract.
The presidency later corrected that reply in a letter to then National Assembly speaker Baleka Mbete, in which Ramaphosa said the R500,000 payment in question was actually a donation that had been made to his ANC presidential campaign, of which he had previously been unaware.
Should Mkhwebane determine that Ramaphosa deliberately lied about this, it will arguably constitute one of the most serious findings ever made against a president by a public protector.
And, because such a finding will almost certainly be subjected to vigorous legal challenge, it will have to be substantially backed up with both evidence and law.
If it is not, the political bomb of finding that Ramaphosa lied to parliament may end up exploding in a court room, and not in the Union Buildings.
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