Public protector Busisiwe Mkhwebane’s defence of her report on President Cyril Ramaphosa’s ANC election campaign funding is based not just on her insistence that she is fighting for “accountability of holders of public power”, but also on an underlying argument that Ramaphosa is expecting “special treatment” that would never have been granted to his predecessor Jacob Zuma.
“To really understand this case,” Mkhwebane’s lawyers say in heads of argument filed at the Pretoria high court last week, “one has to ask the hypothetical question as to what the attitude would be had the holder of public power, in similar circumstances, been a different individual and not this president … Reduced to its essential elements, this case is an attempt to create a sense of impunity for the president and to assert that he is above the applicable law.”
This argument has been a hallmark of several of Mkhwebane’s court battles with Ramaphosa, specifically those linked to public enterprises minister Pravin Gordhan’s multiple legal challenges of her reports on the so-called “Sars rogue unit” and the early retirement granted to then senior Sars (SA Revenue Service) official Ivan Pillay.
Ramaphosa came under fire from Mkhwebane for deciding to await the outcome of Gordhan’s court cases before taking the disciplinary action she had ordered him to take against the minister. She and the EFF insisted that Ramaphosa, like Zuma had in the Nkandla case, was unlawfully ignoring her remedial action. In two separate rulings, the high court in Pretoria rejected that argument and found that Ramaphosa had conducted himself in a lawful and rational way.
Mkhwebane and the EFF have challenged one of those decisions in the Constitutional Court, which has reserved judgment on the case. It is clear from the public protector’s response to Ramaphosa’s CR17 report challenge, however, that she continues to seek to compare his conduct to that of Zuma and suggest, in some way, that Ramaphosa has been given leeway Zuma never was.
It was only a few years ago that then president Zuma tried and failed to first ignore, and then later legally challenge, former public protector Thuli Madonsela’s reports on the upgrades to his Nkandla homestead and her far-reaching investigation into allegations that he and parts of his administration had been “captured” by private interests.
The cases linked to those responses would irretrievably shape the powers of the public protector, a Chapter 9 body intended, in the words of the Constitutional Court, to be “the embodiment of a Biblical David … who fights the most powerful, and very well resourced Goliath”.
But while the Nkandla and state capture cases had far-reaching political implications, they were — at least in respect of how they were litigated by Zuma and Madonsela — profoundly apolitical, and largely focused on defining the extent of the public protector’s powers.
Times have most definitely changed. Ramaphosa and Gordhan have both accused Mkhwebane of pursuing legally and factually baseless investigations against them for “ulterior purposes”, and she, in turn, has argued that Ramaphosa is a president who is seeking to avoid accountability, bolstered by his popularity with “the dominant classes”.
She has also argued that Ramaphosa needed to disclose who had funded his campaign, as such funding could lead to “state capture” — as those who provided such funding may expect something in return. The use of the term “state capture” in reference to Ramaphosa’s funding will be potentially powerful ammunition to his opponents inside and outside the ANC, who have already used Mkhwebane’s CR17 report to argue that the president who has sought to push an anticorruption and clean governance agenda is no different from his predecessor.
In the context of a country exhausted by constant revelations of corruption and mismanagement, that argument may find fertile ground. As the law now stands, however, it may not have the same level of success in the courts.
With Ramaphosa, prosecuting head Shamila Batohi and National Assembly speaker Thandi Modise all arguing that Mkhwebane’s report is legally unsound, the public protector will face an uphill battle in ensuring that it is not overturned. But in this case, even if Ramaphosa wins, he will not walk away from this saga unscathed.
And that, perhaps, was the point.
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