By John Allen
Cape Town — South Africa’s President Cyril Ramaphosa will launch legal action to overturn a report by the country’s official ombudsman which threatens his presidency.
He announced at a news conference on Sunday evening, South African time, that he would ask the country’s courts to carry out an “expedited, urgent judicial review” of findings by the ombudsman – called the Public Protector in South Africa – relating to fund-raising for his 2017 campaign for the presidency of his party.
In a report published on Friday, Public Protector Busisiwe Mkhwebane said that Ramaphosa had contravened a parliamentary code of ethics by failing to declare to Parliament money raised by the campaign.
She said this amounted to “conduct that is inconsistent with his office as member of Cabinet”, ordered Ramaphosa to declare all donations to the campaign and ordered the Speaker of Parliament to report back to her on “remedial action” within 30 days.
She also said the way in which one donation – from a company which is under investigation for paying bribes to receive major government contracts – was handled raised a suspicion of money-laundering and referred the issue to prosecutors for investigation.
Ramaphosa said the “very serious” findings against the head of state made it essential that they were based on fact, had a sound legal basis, were rational and had been reached through a “fair, impartial and lawful process.”
He added: “Unfortunately, the report released by the Public Protector fails to satisfy these crucial requirements… The report is fundamentally and irretrievably flawed…. [It] contains numerous factual inaccuracies of a material nature. The findings are wrong in law, are irrational and, in some instances, exceed the scope of the powers of the Public Protector.”
Answering questions, Ramaphosa indicated that his lawyers would seek to get their case heard within 30 days. In other recent cases, Mkhwebane has insisted that action be taken on her reports even if they are being challenged in the courts.
If courts overturn Mkhwebane’s findings, the future of her position as Public Protector will be threatened. She is already the subject of scathing criticism from judges who have overturned earlier reports, and Ramaphosa supporters accuse her of bias against his administration.
One of the country’s legal commentators, in a column published on Sunday, suggested that Mkhwebane’s report was “a legal and factual mess”. Professor Pierre de Vos, a constitutional law expert at the University of Cape Town, said it was not easy to follow her arguments or “to try and figure out what exact findings the Public Protector made and what the legal basis for these findings were.”
He questioned the reasoning that Ramaphosa was required to declare to Parliament money raised for a party leadership campaign and said the legal analysis on the money-laundering allegation was of “a disappointingly low quality”, making “this part of the report… obviously doomed” in the courts.
De Vos also criticised Mkhwebane’s finding that Ramaphosa had contravened the ethics code by “inadvertently and/or deliberately” misleading Parliament in answering a question about the donation from the company under investigation for kick-backs. But the code only prohibited “wilfully” misleading Parliament, De Vos said: “It goes without saying that one cannot at the same time mislead deliberately and inadvertently.”
Irrespective of the legalities, the report will give Ramaphosa major political difficulties.
Although his lawyers dispute Mkhwebane’s arithmetic, her report and their response reveals that his campaign managers raised huge amounts of money for the operation. (The money was donated to a separately-established campaign body, not to Ramaphosa personally, and he has said his managers deliberately kept the identity of donors from him to avoid any appearance of conflicts of interest when he later took office.)
Opponents can be expected to seize on the figures and demand the identities of donors.
On this issue, De Vos agrees with “with the basic premise of the Public Protector’s report that candidates who run for leadership positions in political parties ought to reveal all donations made to their campaigns.” However, he adds, the law as it stands does not require this unless a candidate is a member of Parliament and receives it personally.