South Africans are right to be concerned when the president or other government officials use taxpayers’ money to fight their legal battles.
For more than a decade we have been funding former president Jacob Zuma’s “Stalingrad defence” to avoid facing corruption charges. Eventually, the high court in Pretoria ruled that an agreement between Zuma and the presidency for the state to cover legal costs incurred in his personal capacity was invalid and set it aside. Zuma has been ordered to pay back the money.
Earlier this week DA leader Mmusi Maimane revealed that he had written to President Cyril Ramaphosa asking for an undertaking that he will not use public money if he takes public protector Busisiwe Mkhwebane’s final Bosasa report on judicial review.
Maimane said South Africans could not be expected to pay the legal bills for Ramaphosa to defend himself against allegations of corruption, abuse of power and money laundering.
Maimane is correct that we shouldn’t be expected to pay legal bills when someone is accused of corruption in their personal capacity. However, in this case Ramaphosa is not formally an accused in a corruption case and the complaint relates to him misleading parliament as president.
The presidency is therefore technically correct when it says the complaint lodged with the public protector related to Ramaphosa being in parliament answering questions, and how he answered those was in the course of fulfilling his duties as head of state.
However, presidency spokesperson Khusela Diko did say that, as is standard practice, an undertaking would be signed for the president to repay the costs of the matter if it is found that he had acted in his personal interest.
The complaint against Ramaphosa was not based on money laundering or corruption, and Mkhwebane’s office has no jurisdiction to investigate money laundering. She is meant to be investigating whether Ramaphosa breached the Executive Members’ Ethics Act by misleading parliament about a R500,000 donation he received from Bosasa CEO Gavin Watson for his campaign to become ANC president in December 2017.
Maimane laid the complaint late in 2018 after Ramaphosa initially told parliament that the payment to an account used to manage his campaign donations was, in fact, a consultancy payment from Bosasa to his son, Andile. Days later he wrote to then speaker Baleka Mbete admitting he had been wrong, and that the money was actually a donation to his election campaign.
The original complaint against Ramaphosa is based on his conduct as state president. But there is another argument to consider. To set the right precedent the president should take the high ground and personally pay for the legal costs. This would send a strong message to his executive, and others in government, that public funds cannot be abused in defence against wrongdoing.
If the criminal justice system works the way it is meant to, a number of MPs who were ministers during the Zuma era and became embroiled in allegations of state capture could soon find themselves in court to defend themselves against allegations of corruption.
One example is former communications minister Faith Muthambi, who according to the leaked Gupta e-mails shared confidential cabinet information with the family. It is a criminal offence to leak cabinet information, so if the allegation is true it cannot have been done in her capacity as minister. If she does ever land up in court, should the government pay her legal bill?
The same could be said for former mineral resources minister Mosebenzi Zwane, who travelled with the Guptas to Switzerland in January 2016 to negotiate the purchase of the Optimum Colliery mine from Glencore. Again, was this part of his duty as mineral resources minister?
This is Ramaphosa’s chance to set an example and show that he is serious about transforming the state and cleaning up the rot. The president was quoted by the high court in the Zuma legal bills matter, saying it is a “fundamental principle that public money should not be used to cover the legal expenses of individuals on strictly personal matters”.
In the meantime, we wait in anxious anticipation for the release of Mkhwebane’s final report. She has already notified Ramaphosa that he was implicated in her provisional investigation report. The presidency has confirmed that Ramaphosa has filed a response to the findings made against him.
It is likely that the president will take Mkhwebane’s final report on judicial review, an arena in which the public protector has not had much luck. So far two of her reports have been overturned by the courts, and her competency has been questioned in both judgments.
But while Ramaphosa battles the public protector, his party has to decide whether it will vote with the DA to remove her from office. If the ANC were to decide to vote her out the timing, politically, might not be too good for Ramaphosa as it could expose him and his allies to accusations of acting to protect the president.
It could detract from the serious accusations being levelled against the public protector, of which her competency seems the least important. After all, the DA’s bid to remove her from office has nothing to do with Ramaphosa and Bosasa. The party has been adamant from the start that she is not fit for office.
A smart ANC would have voted in 2018 to remove her, when the DA first tackled the issue. This would have been a great boost for the party ahead of the general elections. The party, and Ramaphosa, have now backed themselves into a corner.
• Quintal is political editor.
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