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Evidence leader's fine legal scalpel slices through Mkhwebane’s assertions about CR17 ‘money laundering’

Evidence leader's fine legal scalpel slices through Mkhwebane’s assertions about CR17 ‘money laundering’
Marianne Thamm
By Marianne Thamm
3 Apr 2023
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Busisiwe Mkhwebane’s suspicious mind led to her assumption that Cyril Ramaphosa was involved in money laundering, the Section 194 impeachment inquiry has heard.

Look, no one can blame any quick-witted contemporary human for harbouring deep suspicion. About everything, really. It is a sign of these tenuous times of fake news and alternative realities.

Seriously and honestly, if it had to do with money paid to an ANC leader, many will be tempted immediately to assume this to be “dirty”, the proceeds of corruption. Sad as it is.

But, were we trained advocates or lawyers, like Busisiwe Mkhwebane (herself left lawyerless on Monday) and Nazreen Bawa, inquiry evidence leader, we would know that assumption is the enemy of truth and justice.

It was Bawa’s opportunity on Monday, after some legal wrangling and general bleating by the usuals — the UDM, the EFF, the ATM — to present evidence to committee members.

The lodestar from now on would be facts, stuff said, stuff admitted to, stuff recorded — truths common to both sides in this instance. And that was what Bawa did, coldly, clinically, with a fine legal scalpel.

The suspended PP, sans her legal representative advocate Dali Mpofu, sat quietly on a screen from Gauteng, listening. She asked what point would it serve for her to be physically present without her right-hand man. Mpofu, the committee heard earlier, was on a silent watching brief, which may have come as a relief to some.

The committee heard it was suspicion which had led to Mkhwebane’s assumption that private money donated to Cyril Ramaphosa’s ANC presidential campaign in 2017 could only have been the “proceeds of corruption”.

Just as former witness, PP official Baldwin Neshunzhi, testified earlier that Mkhwebane had just assumed he had been “deployed” by the State Security Agency (SSA) to her office, when he was just a regular guy. (Mkhwebane had in fact requested former SSA boss Arthur Fraser to “recall” Neshunzhi.)

Shadow play


The committee heard on Friday that Mkhwebane had wanted Public Protector of South Africa officials all to be cleared by the SSA as one never knew “who was paying them” (hopefully, the government) and “who was controlling them” (hopefully, no one).

Read more in Daily Maverick: Where art thou, Dali? A tough week of burning questions ahead for Mkhwebane

On Monday, committee members were guided into the late afternoon by the question of whether it was a deliberate sort of confirmation-of-my-own suspicion-bias that took Mkhwebane to the incorrect legislation, the Prevention and Combating of Corrupt Activities Act (Precca), or just her innocent ignorance of the law.

Mkhwebane used this act in finding that there was prima facie evidence of money laundering on the part of Ramaphosa. Precca defines money laundering as a breach of the law involving the “proceeds of crime” and attempts to conceal this.

“We know she [Mkhwebane] had no evidence that public officials or public funds were involved... These were all private donors,” Bawa set out.

Mkhwebane had found the donations had amounted to “State Capture” as Ramaphosa could be politically controlled by his patrons, she reckoned.

The amount donated by the late Bosasa CEO, Gavin Watson, to the campaign coffer had been R500,000 which had been paid into EFG Law Firm which handled the Ria Tenda Trust.

Mkhwebane had “stumbled” on the rest of the R1.2-billion private peeps scraped together to help CR defeat incumbent Jacob Zuma while sniffing around for the R500,000 of the original complaint.

After demanding a report from the Financial Intelligence Centre (FIC), Mkhwebane had sight of all money movements in the CR17 campaign. Soon after, a trove of emails had been leaked to News24 showing the “inner workings” of Ramaphosa’s campaign. This naturally led to calls by the EFF and others that Ramaphosa immediately step down.

Read more in Daily Maverick: #CR17 email leaks: Separating the myths from the facts 

Ramaphosa, in his court documents, argued the Bosasa donation had been ringfenced because the company had been implicated at the State Capture Commission. Ramaphosa’s campaign people have since attempted to return this money.

Read more in Daily Maverick: Ramaphosa’s Bosasa scandal: Don’t hold your breath for accountability

It was this “suspicious movement of money” that had alerted Mkhwebane and she later based her findings in her CR17 report, Bawa set out for the committee, “on legislation that had nothing to do with money laundering” at all.

“Had she been diligent she would not have arrived at the conclusions she did.”

Mkhwebane has already admitted in various affidavits to relying on incorrect legislation as well as an unlawful version of the Executive Ethics Code.

The argument revolves around the use of the words “wilful”, “inadvertently”, “deliberately” and so on, in the 2000 version of the Code which is law, seeing as the 2007 code, on which Mkhwebane had relied, has not been promulgated.

The PP Act circumscribes Mkhwebane’s powers to investigate a breach of the code and not the Executive Members Ethics Act, the committee was schooled by Bawa.

The start of it all


The complicated process all began when then Democratic Alliance leader, Mmusi Maimane, lodged a complaint with the PP, with the Economic Freedom Fighters deputy president, Floyd Shivambu, following suit soon after.

This was after Ramaphosa had replied to a question in Parliament from Maimane about the funding.

Mkhwebane had been correct, the committee heard, in consolidating the two complaints for administrative purposes.

A third anonymous complaint by a member of the public had been lodged but by law, a pawn cannot lay charges against the top row, the more important pieces on the chess board. In other words, a person who is not a member of Parliament is precluded in terms of the Executive Members Ethics Act from lodging a complaint.

In Mkhwebane’s report, she had said she had taken into account that Ramaphosa had been deputy president of the governing party and the country at the time.

However, she found that he had later deliberately misled Parliament as President while responding to a question about the donation.

Legal advice


Mkhwebane said that she had accepted, on legal advice, sections of Precca had applied while later referring to Poca (the Prevention of Organised Crime Act) which she actually relied on for her money laundering finding. Money laundering is an offence under Poca.

Ramaphosa had argued there was simply “no factual basis” for the accusation and finding of money laundering and that he should be investigated by the National Prosecuting Authority.

“However, the PP does not set out why she believes the suspicion of money laundering is sustainable,” and, added Bawa, neither had she made a sustainable case about the code.

The source of the funds for the CR17 campaign had not been disguised, and had gone through two identified intermediaries, Bawa added.

“The PP did not admit that she used the wrong legislation. When she comes to testify we will ask where in the main body of the affidavit she dealt with Precca as opposed to Poca,” warned Bawa.

“This gives her a heads-up. I am not saying I am drawing any conclusions,” she added.

No gazette, no law


Bawa said the first time Mkhwebane had ever referred to using the 2007 code to make her finding was in her application for rescission of the Johannesburg High Court’s decision to set aside her report to the Constitutional Court.

“The rescission application was the first time this argument is advanced. I have scoured the affidavits to the high court and the original application. I could not find a reference to this specific legal argument,” said Bawa.

She said in 2007, then president Thabo Mbeki had published the new code that members may not “deliberately or inadvertently” mislead Parliament.

“We have not found this 2007 code which was never proclaimed in a gazette and which does not comply with the Executive Members Ethics Act and therefore has no legal efficacy.”

The inquiry continues. DM

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