THREAD: The Constitutional Court today hears the PP’s direct application for leave to appeal the judgment and order of the full bench of Gauteng Division of High Court in Pretoria in which her CR17/Bosasa donation investigation report was reviewed, declared invalid and set aside

The case follows the PP’s investigation into allegations of a violation of the Executive Ethics Code through an allegedly improper relationship between the President and African Global Operations (AGO), which previously traded as Bosasa.

Former DA leader Mmusi Maimane, approached the PP on 23 November 2019 under the Executive Members’ Ethics Act (EMEA), requesting her to investigate allegations of a violation of the Code by the President.

Mr. Maimane, then an MP, wanted the PP to investigate if the President misled the National Assembly about R500k AGO donation during a questing session on 6 November 2019 in the Assembly

He further wanted the PP to investigate the nature of the relationship between the President and his family on the one side and the Bosasa on the other, thereby exposing himself to a risk of a conflict between his official duties and his private interests.

In addition, Mr. Maimane wanted the PP to look into the nature of the R500k donation, given that the money passed through “several intermediaries” and therefore did not “accord with a straight forward donation and raises the suspicion of money laundering”.

The PP received a further complaint, also lodged in terms of EMEA, from the Chief Whip of the EFF, Floyd Shivambu, regarding the truthfulness of the President’s statement in the Assembly that here was a contract between his son, Andile, and AGO.

Following her investigation, PP found that President deliberately misled the Assembly in that the statement he made during the session was misleading as per his own concession in a letter to Speaker where he sought to correct his initial response to Mr. Maimane’s question.

She found that the President’s misleading of the Assembly was deliberate in that he should have allowed himself sufficient time to research on a well-informed response.

The PP also found that the President exposed himself to a risk of a conflict between his official responsibilities and his private interests or used his position to enrich himself and his son through businesses owned by AGO.

She added that it could be safely argued that campaign pledges to #CR17 campaign were some form of sponsorship, direct financial sponsorship or assistance from non-party sources other than a family member of permanent companion, & benefits of a material nature to the President.

She indicated that there was evidence indicating that some of the money collected through CR17 campaign trust account had also been transferred into the Ramaphosa Trust Foundation account and that Mr. Ramaphosa was Deputy President of the country at the time of the donation.

She found his failure to disclose the financial interest which accrued to him as a result of the donations received towards the CR17 campaign constituted a violation of the Code and was conduct that was inconsistent with his office.

In addition to these, the PP found the allegation that there was an improper relationship between the President and his family, and AGO due to the nature of the donation passing through several intermediaries thus raising the suspicion of money laundering to have merit.

However, she decided to refer the matter of suspected money laundering to the NPA for further probing as envisaged in section 6(4)(c)(i) of the PP Act, which gives her the authority to do so.

On remedial action, the PP directed the Speaker to refer the President’s violation of the Code of Ethical Conduct and Disclosure of Member’s Interests to the Joint Committee on Ethics and Members’ Interests for consideration.

She directed the Speaker to consider, within her discretion, for deliberation by Members of Parliament in terms of the Rules of the Assembly, issues relating to her observations as spelt out in paragraphs 6.1 to 6.6 of the report for possible review and amendment

The Speaker further had to demand publication of all donations received by the President because, as the then Deputy President, he was bound to declare such financial interests into the Members’ Registerable Interests Register in the spirit of accountability and transparency.

The NPA was directed to take note of the observations in paragraph 7.3.1 and recommendations contained in paragraph 7.3.3 of the report in line with section 6(4)(c)(i) of the PP Act.

The Public Protector’s report was released on Friday, July 19, 2019. Two days later, on Sunday, July 21, 2019, the President held a media briefing at which he announced that he will take the report on judicial review.

This was followed by a two-part application to the High Court. Part A was an urgent application for the staying of remedial action while Part B was about the review and setting aside of the findings and remedial action. The PP did not oppose Part A.

On 10 March 2020, the full bench of the High Court reviewed the report, declared it invalid and set it aside.

This prompted the PP’s application for leave to appeal the decision and the order directly to the Constitutional Court.

In argument before the justices of the apex court, Adv. Muzi Sikhakhane SC will advance the following points on behalf of the PP:

1. If the question of whether the President misled Parliament was to be determined objectively, it is incontrovertible that he did mislead the National Assembly. Common cause facts bear out that finding.

2. That the President reverted to the Assembly does not detract from the fact that at the time he made the statement, he misled Parliament. That he came back to correct should not affect the fact that he misled Parliament

3. Mr Bejani Chauke, the President’s special adviser, confirmed that the President was correct that “this issue” (the donation) was brought to the President’s attention “some time ago”.

Follow the proceedings live here: