Your ultimate guide to the key issues in Ramaphosa vs Mkhwebane court battle

As President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane face off in the Gauteng High Court in Pretoria on Tuesday, you can be forgiven for being hazy on the details of the legal battle.

Here’s your ultimate guide to the key issues expected to be argued, as well as a brief note on the terminology you can expect to encounter while following the case.

An outline of the history of the case, to get you up to speed.

In November 2018, Ramaphosa was questioned by former DA leader Mmusi Maimane in the National Assembly over a R500,000 payment ostensibly made to his son, Andile, by the now late Bosasa CEO, Gavin Watson.

Ramaphosa responded that he was aware of the payment, and that it was all above board and part of Andile’s consultancy agreement with the Krugersdorp company, which has been mired in controversy over allegations of bribery and corruption for more than a decade.

Days later, and with journalists hot on the trail of the origin and destination of the payment, on November 14, Ramaphosa sent a letter to the Speaker of Parliament, correcting his oral reply. Now he said, he had been made aware that the payment was, in fact, a donation to his successful 2017 ANC presidential campaign.

This prompted the DA to ask the public protector to look into the payment and concerns over money laundering in the way the payment was made, and the relationship between Ramaphosa’s son and Bosasa.

Mkhwebane duly investigated the complaint, together with a second complaint from the EFF, and published her report in July 2019. She found Ramaphosa had deliberately misled Parliament, and recommended an investigation by the police into possible money laundering.

Ramaphosa moved immediately to take the report on legal review.

What is a legal review?

A legal review is a process whereby an aggrieved party launches a court application to have the findings, recommendations or quite often, an entire report by any investigative or judicial body, set aside.

What does Ramaphosa want?

Ramaphosa wants the court, essentially, to declare that the Public Protector was wrong in her findings that:

• Ramaphosa misled Parliament in breach of the EMEA when responding to Maimane’s question. He maintains he was entirely honest, and when he realised he gave a wrong answer, corrected it immediately;
• Ramaphosa failed to disclose the donations to CR17 in terms of the code of ethical conduct to Parliament, which Mkhwebane has found he should have done as he was deputy president at the time. Ramaphosa contends in court papers that the donations were not for his personal benefit, and he did not have to declare them;
• A suspicion of money laundering exists as a result of the R500,000 donation from Watson, and how the campaign conducted its finances. Ramaphosa contends Mkhwebane is wrong in law in this finding, and that she had no jurisdiction to investigate the CR17 funding.

Mkhwebane has unequivocally stood by her report and its findings.

Who else is involved?

There are a number of intervening parties and respondents, each with their own objective.

The speaker of parliament is the second applicant, who is asking the court to set aside only certain remedial actions in Mkhwebane’s report. She instructed Parliament to task its ethics committee to investigate Ramaphosa for failing to declare the donations.

National Director of Public Prosecutions, Shamila Batohi

Batohi is opposed to Mkhwebane’s remedial action which placed her under orders from Mkhwebane to investigate the money laundering issues, and report back to her within 30 days on how she planned to do so.

Batohi and the speaker are arguing that Mkhwebane overstepped in instructing them how and when to do their work. Mkhwebane maintains the remedial actions were simply referrals, and she was not dictating to anyone.

Economic Freedom Fighters

The EFF intervened and are supporting Mkhwebane, with wide-ranging submissions over Ramaphosa’s conduct and alleged lack of candour. The EFF’s Floyd Shivambu was also the second complainant.

The Financial Intelligence Centre

The FIC intervened when it became clear that Ramaphosa was raising issues over the legality of the information it handed to Mkhwebane. Ramaphosa has accused the FIC of handing over more information than it was asked for. He has also accused Mkhwebane of contravening the law when she used a report the FIC provided as evidence. FIC reports can only be used for intelligence, and further investigation is required.

The Information Regulator of South Africa

The Information Regulator intervened as a friend of the court to provide information for the record when Ramaphosa raised constitutional issues over the privacy of information. He asked for certain parts of the court record to be sealed, as it contained third party information he did not have permission to share.

AmaBhungane Centre for Investigative Journalism

AmaBhungane intervened as in its view, if the court finds that the Executive Ethics Code does not place an obligation on a member of parliament to declare private donations, the language in the code was unconstitutionally vague. AmaBhungane said in court papers that it was not getting involved in the fight between the president and Mkhwebane.

What is a Rule 53 record?

The Rule 53 record is documents, including reports, letters, transcripts of interviews and all the evidence Mkhwebane used to reach her conclusions. Filing these records is a necessity, according to the uniform rules of court.

Who’s who?

Here’s who will be representing who:

Ramaphosa – Advocates Wim Trengove SC, Tembeka Ngcukaitobi and Ndumiso Luthuli.

Speaker – Advocates Gcina Malindi and Ria Matsala.

Mkhwebane – Advocates Muzi Sikhakhane SC and Farzanah Karachi.

Batohi – Avocates Tim Bruinders SC and Kerensa Millard.

EFF – Advocates Vincent Maleka SC, Jason Mitchell and Kameel Premhid.

FIC – Advocates Les Morrison SC and Gcobani Ngcangisa.

AmaBhungane – Advocates Steven Budlender SC and Tshidiso Ramogale.

Information Regulator – Advocates Cedric Puckrin SC and Stuart Scott.

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