Public Protector vs President: Inside The Final Countdown

This morning, Friday, 28 June, Public Protector Busisiwe Mkhwebane went into the boardroom abutting her office suite at her Pretoria office with her top team to begin combing through the most important set of documents of her almost three-year tenure.

Accompanying her were a select number of the top guns in the organisation – the chief investigator and senior investigators on a case referred to her in November 2018. It is likely to be the most significant to come before her of the 60-odd complaints to reach the office almost every day. The documents are being carefully managed for maximum security. A leak to the media can be fatal. Why the high-level security and attention?

The respondent is President Cyril Ramaphosa. Just before he stepped into his jet to head to the G20 meetings in Japan on Wednesday, Ramaphosa signed off on a large set of documents in which he set out chapter and verse of why he disagreed with her initial finding. It is likely that Mkhwebane’s draft report found he had violated the Executive Ethics Act in how he communicated an answer to a question about a payment from Bosasa, the corrupt facilities management company.

Ramaphosa's Nkandla?

In November 2018, the DA started the ball rolling on a case that could become the first significant hiccup of Ramaphosa’s presidency. The opposition party put in a complaint to the Public Protector’s office, as it regularly does. The office is the guardian of the Executive Ethics Act, a piece of legislation which is designed to ensure the probity of the President and his or her executive.

It is a vital piece of legislation in the good governance arsenal and the Public Protector Act gives special treatment to complaints made in terms of this law. They must be dealt with expeditiously – within 30 days – and if they are not quickly judged, both the complainant and the respondent must be kept abreast of why not.

The ethics complaints tend to get dealt with by the incumbent Public Protector directly and complaints are regularly made by opposition parties, notably the DA and the EFF. The DA’s complaint was titled: Relationship of the President with African Global Operations formerly known as Bosasa.

Ramaphosa had bungled badly in answering a DA question. On 6 November 2018, DA leader Mmusi Maimane asked Ramaphosa about money allegedly received by his son, Andile, from Bosasa. Ramaphosa replied that his son had been working with Bosasa and confirmed a payment; later, he changed his story and said that R500,000 had been received from Bosasa for his campaign to become ANC president in 2017.

At the time, Bosasa was known as a controversial company and so it raised some red flags; but now those red flags have turned into much bigger crimson wet blankets for Ramaphosa’s young presidency.

That happened because Bosasa’s former COO Angelo Agrizzi in January 2018 began a fortnight’s testimony before the Zondo commission of inquiry into State Capture which revealed that the facilities management company was, in fact, a much bigger ANC patronage network; it may even have been an informal front company of the governing party. Agrizzi revealed, under oath, how the party had received regular donations, how the company had run election call centres for the ANC and how it had drawn big ANC fish into its game of favours and back-handers. Among the big fish he named were Minerals and Energy minister Gwede Mantashe, former Minister of Women Nomvula Mokonyane and ANC MPs including Vincent Smith and Cedric Frolick.

The DA complaint put Ramaphosa in receipt of Bosasa money too and it threatens to dent his reputation as a Mr Clean. Media reports have revealed that Mkhwebane’s first report found that he had violated the Executive Ethics Act, possibly at the second-tier offence of maladministration.

It was an Executive Ethics Act complaint to the former Public Protector, Thuli Madonsela, for the misspending on his personal estate at Nkandla which began the end game for former president Jacob Zuma. He was found to have violated the ethics legislation and her report was the document upon which Chief Justice Mogoeng Mogoeng made his resonant judgment on the power and effect of Public Protector rulings.

Ramaphosa takes personal charge of response to Public Protector

With so much riding on Mkhwebane’s report, which is likely to come out soon as it is already well over the 30-day deadline for completion of this type of report, Ramaphosa has taken a personal hand in the comprehensive and detailed responses to Mkhwebane. In addition to his legal adviser, he also hired an attorney and a counsel and then paid from his pocket for an additional senior counsel to pen the responses to Mkhwebane’s damning first draft report which the Sunday Independentreported on a fortnight ago.

The Presidency spokesperson Khusela Diko said in a statement on Thursday that Ramaphosa had handed a comprehensive response to Mkhwebane’s office including confirmatory affidavits.

The Public Protector has subpoenaed bank records and cellphone records in the course of her investigation; she has interviewed campaign managers Benjani Chauke and James Motlatsi as well as Gavin Watson. While Ramaphosa’s lawyers wanted to question Watson, she would not permit it and insisted that questions be fielded through her office. Mkhwebane is as sure of her case as Ramaphosa is of his.

An official points out that while her office has come under significant criticism because she has had two big cases stung by two High Court judges, Mkhwebane uses the same investigators and legal teams that served Madonsela well.

All of them are highly experienced and many have worked in the office since the term of the inaugural Public Protector, Selby Baqwa. The official says that while much is made of the stinging court reviews of Mkhwebane in two findings, the courts have in fact set aside seven findings, five of which pre-date her tenure.

The two judgments against Mkhwebane are on the SA Reserve Bank (she instructed Parliament to change the bank’s mandate – which the legislature cannot do) and in the Free State Vrede (Estina) dairy case (she let the Gupta family’s political cronies like ANC secretary-general Ace Magashule, who was premier at the time, off the hook and failed to take into the account the views of victims of the award).

Mkhwebane and her team are likely to work through the weekend combing through Ramaphosa’s responses before beginning to craft the final report. Will his responses do enough to ensure that the Public Protector changes her initial view that he was in violation of the Executive Ethics Act in that he may have misled Parliament in his initial response to the DA on the Bosasa donation to his campaign?

Once she decides how she will rule, the Public Protector will run her decision through a top team in her boardroom – discussions on findings are often robust. The final report should come out soon.

“(The case) has become a political football which is somewhat marring issues and blending unrelated narratives. The ANC is using it for different factional battles with some trying to delegitimise the Public Protector and others reinforcing (her role).

Throughout the week, ANC grandé’s have taken pot-shots at Mkhwebane – notably Mantashe, who was speaking at a trade union conference where he launched into a vitriolic attack on Mkhwebane. On Friday afternoon, the ANC called for restraint.