Politics and recordings — the latest RET claim might inflict pain on the ANC — but no legal bother for Ramaphosa

30 Jan 2022

The long-term impact of this is that there will be even less trust in the ANC than there is now. That does not bode well for a party claiming to be trying to ‘renew’ itself by dealing with corruption within it.

Over the past week, the claims around an audio recording of President Cyril Ramaphosa appearing to say the ANC is more important than the country have reached a point at which they could pose some kind of threat. While there is significant evidence that the recording is the work of his political opponents, it may still have a significant political impact.

It appears unlikely that there could be any findings made against him in any forum simply because of the legal issues which this recording brings up. This means that the damage he could suffer is likely to be limited. But this incident demonstrates how deeply the factions within the ANC loathe each other, to the point of happily working to damage its leader while knowing the party itself will be harmed.

Last week, Parliament’s Standing Committee on Public Accounts (Scopa) and Public Protector Busisiwe Mkhwebane confirmed that they were investigating this audio recording. Scopa is asking the president to write a letter explaining what the recording is, and why he said what he said. The Public Protector’s office itself is investigating a complaint that Ramaphosa has broken the Executive Code of Ethics.

On the face of it, these two processes could both lead to some kind of damage for Ramaphosa. But any damage he may suffer may only be in terms of his image and have minimal or no legal impact.

On 20 December last year, an RET-aligned website called the Insight Factor released an audio recording of Ramaphosa speaking in what appears to be a Zoom meeting of the ANC’s national executive committee (NEC).

The recording itself has not been contested by the ANC’s head of Presidency, Sibongile Besani. But he has said, several times, that this recording has been taken out of context.

The recording, in what appears to be Ramaphosa’s voice, contains this comment:

Investigations will reveal that a lot of money, of public money was used, and I said in this case, I am prepared to fall on the sword. So that the CR17 campaign yes, should be the only one that’s looked at.

And not the others, because the image of the African National Congress is what I am most concerned about. Each one of us knows that quite a bit of money that is used in campaigns, in busing people around in doing all manner of things, is often from state resources and public resources. And we cannot kid ourselves when it comes to that.

One of the officials said, as these people from the State Security were testifying, one of the officials said, soon they will be revealing how the money from the SSA was used for some campaigning. And I said heaven forbid, I would rather, they say yes, you got money from this businessman for CR17, than for the public to finally hear that their money, public money, was used to advance certain campaigns. So comrade Tony, and all comrades, on this, this need for transparency, I’m all for it.

And you will recall comrades, I was the first one to say, we need to develop guidelines on how we run campaigns. I was the first one. And I will say, comrade Tony, you are absolutely right, that rule, that decision that was taken, I think it was at the Polokwane conference, no it was at the Mangaung conference, where we say now to determine how money should not…”

The recording concludes at this point. It is not clear what he was going to say at the end.

The recent history of the recording may be important.

The Insight Factor is run by Modiba Modiba and Thabo Makwakwa. Modiba has formerly claimed in publications owned by the Independent Group that he was paid by Daily Maverick to write tweets and articles critical of Dr Iqbal Survé. The claims are false. Survé has used his titles to campaign against Ramaphosa, and to support the president’s critics.

(NB: Daily Maverick has since mid-2020 tried multiple times to serve court papers on Modiba, who has managed to avoid the sheriff every time, while continuously taunting Daily Maverick and its journalists on social media. An application for summary judgment against Modiba has been lodged — Ed)

ANC MP Mervyn Dirks is the person who took the claims to Scopa. He is a self-proclaimed supporter of the “RET faction” of the ANC and a critic of Ramaphosa.

It appears that the ANC caucus leader in Parliament is against Dirks, as he was suspended as an MP. He tried to challenge this decision in court, but a judge ruled it was not legally urgent.

Then there is the Public Protector: Mkhwebane has a track record of trying to frustrate Ramaphosa’s agenda.

She has previously lost cases in the Constitutional Court relating to the funding of Ramaphosa’s CR17 campaign, as well as multiple cases involving Pravin Gordhan and the so-called “rogue unit”, the Zuma-era false stories she tried to resuscitate.

This is part of a long track record of losing cases that all appear to have a political interest.

Her recent decision to hire Luther Lebelo, who played a role in the sabotage of the South African Revenue Service, also suggests that Mkhwebane is playing a political role. She denies this.

However, under the law, the motives of those who bring a complaint do not necessarily matter; the complaint must still be adjudicated.

There is an unprecedented and slightly startling aspect to the decisions both by Scopa and the Public Protector’s office to investigate this audio clip: it is that they are both saying they want to investigate what Ramaphosa said, not what he has done.

As far as is known, this has never happened before, it has simply not happened that a member of the executive has been investigated by these bodies for something they’ve said. All the previous cases related to something they have done.

That said, it does appear that the Ethics Code compels someone who is aware of corruption to report it.

In the end, whatever decision Scopa and the Public Protector come to, it is likely that a court would be roped in to make a final decision. If they find against Ramaphosa he would go to court; if they find for him, someone else might challenge that decision.

But, as the advocate Romeo Nthambeleni pointed out on Newzroom Afrika last week, there are a host of legal problems here, as he put it, “the evidence must be tested”.

The first is that any court would want to know where the recording came from, who recorded it, and whether Ramaphosa knew he was being recorded (it is a little-known fact in our law that you have to tell someone you are recording them… something every radio reporter knows well).

In this case, if it was an NEC meeting, it means that a member of the NEC recorded Ramaphosa, without him knowing. It is unlikely that that person will admit to making the recording, they would surely be subject to ANC disciplinary proceedings. As a result, on that alone, a court may well find that it cannot accept the recording as evidence.

This is before it has to make findings on the fact that Ramaphosa was not aware he was being recorded, and whether the recording was manipulated. And in fact, on which date this happened, which is not entirely clear at the moment.

This means that any finding by either Scopa or the Public Protector is unlikely to be upheld and it may be foolish for either to attempt to make a finding against him, as though such a hurdle was ever too high for Mkhwebane.

However, there may still be a political problem for Ramaphosa.

This is because in the recording, while speaking about how public money was used for ANC leadership campaigns, he says “the image of the African National Congress is what I am most concerned about”. In other words, it could be interpreted as the ANC is more important than the country.

This gets to the heart of a tension that has been a part of Ramaphosa’s presidency, probably from before it started.

DA leader John Steenhuisen has challenged him to say which is more important, the ANC or the country.

In August last year, in direct response to this in Parliament, Ramaphosa said, “South Africa comes first, I was not sworn in to advance the interests of a party, I was sworn in to advance the interests of the people of South Africa.”

Thus this recording seems to directly contradict that. And this may be the biggest problem that emerges for him from this recording.

Of course, Ramaphosa now gets a chance to respond, in the form of a written response to Scopa. It may be tempting for him to take the legal route, to simply say that there is no prospect of the evidence surviving a legal test and thus to simply remove the problem legally.

But that would not solve the political problem this represents.

As a result, he may have to try to resolve the political problem by explaining the full context in which his comment was said. This would mean he would have to explain exactly what was happening inside an ANC NEC meeting. It appears this has happened under oath only once before, when Transport Minister Fikile Mbalula testified at the Zondo Commission about how he had been told by the Gupta family that he was to be moved in a Cabinet reshuffle.

It also means that other members of the NEC, including the person who recorded it, may try to claim that he is lying about the context, thus blowing open the contents of an entire NEC meeting.

In a strange way, all of this was predictable; as soon as the NEC moved to virtual meetings, that recordings would emerge was inevitable. It was also predictable that recordings would be edited.

The longer-term impact of this is that there will be even less trust in the ANC than there is now. And that does not bode well for a party claiming to be trying to “renew” itself by dealing with corruption within it. The ANC’s anti-corruption war, in the end, may turn out to be too hot to handle for everyone. DM

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