President Cyril Ramaphosa’s lawyers have slammed the EFF’s attempt to appeal the invalidation of public protector Busisiwe Mkhwebane’s damaging report about his election campaign funding as “absurd”.
They say the party has made no effort to even defend her “hopelessly flawed” findings.
While Mkhwebane has turned to the Constitutional Court in her efforts to challenge the scathing Pretoria high court ruling that found her report on Ramaphosa’s CR17 campaign to be legally and factually flawed, the EFF has sought leave to appeal that judgment in the Supreme Court of Appeal.
Once the vanguard of effective legal warfare on behalf of public protector Thuli Madonsela, the EFF has suffered a series of bruising legal defeats in its efforts to defend Mkhwebane. The party has laid the blame for these losses on the judiciary itself.
With this latest attempt to defend Mkhwebane’s CR17 campaign report, the party now faces the possibility that the appeal court decides that its case has no reasonable prospect of success, and does not even agree to hear it.
Ramaphosa’s lawyers have taken issue with the EFF’s insistence that the president deliberately lied to parliament about a R500,000 donation his CR17 campaign received from now deceased Bosasa CEO Gavin Watson.
Ramaphosa’s lawyers accuse the party of making no effort to actually defend Mkhwebane’s report on its own merits. Instead, they say the EFF is seeking to challenge the high court’s decision “based on arguments which were not advanced in the main application, on factual conjectures, and trivial disagreements with the findings of this court”.
“The EFF … ignores the public protector’s actual findings and her actual reasons for those findings. It argues instead that the public protector could or should have made other adverse findings against the president for new reasons conjured up by the EFF,” they state.
Mkhwebane’s investigation into Ramaphosa’s CR17 campaign funding, which she insists was a legitimate attempt to hold the executive to account, can arguably be described as one of the biggest political headaches of his term in office.
The public protector contended that the R200m raised for CR17 could result in “state capture” and ordered that the National Prosecuting Authority investigate the “prima facie” evidence of money-laundering she claimed to have uncovered during her probe.
She further found that Ramaphosa had deliberately lied to parliament.
After he was asked by then DA leader Mmusi Maimane about a Bosasa payment made to his son Andile, Ramaphosa confirmed that his son had signed a consulting agreement with the corruption-accused facilities management company.
However, days later he wrote to then speaker of parliament Baleka Mbete and revealed that the payment was in fact a donation to the CR17 campaign.
The high court in Pretoria found that, on the law and on the facts, Mkhwebane’s finding that Ramaphosa had deliberately misled parliament was hopelessly flawed, and set it aside.
But the EFF now argues that because Ramaphosa sought to distance himself from the CR17 operations and thereby avoid any potential conflict of interest, he placed himself in a position of “willful ignorance” that “had the purpose or effect of frustrating his duty to account to parliament”.
By taking these steps, the EFF argues, Ramaphosa deliberately misled parliament because “he knew (or ought to have known) it would mean he would not be able to account to parliament for things that he had a duty to account for (i.e. everything)”.
The party further contends that Ramaphosa had a “duty of full knowledge” — an argument the president’s lawyers say is “not only entirely new but also absurd”.
“The foundation of its new case, that the constitution requires the president to know everything and to disclose everything to parliament, is plainly absurd,” Ramaphosa’s lawyers state.
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