Chief Justice Mogoeng Mogoeng says President Cyril Ramaphosa should have disclosed the donations to his 2017 ANC presidential election (CR17) campaign to Parliament’s National Assembly.
This is after the Constitutional Court (ConCourt) on Thursday dismissed Public Protector Busisiwe Mkhwebane’s application for leave to appeal the high court decision to set aside her report on the CR17 campaign.
Delivering the judgment, Justice Chris Jafta said the majority judgement held that no law authorised Mkhwebane to investigate the affairs of the CR17 campaign.
The apex court also ruled that Ramaphosa was not obliged to disclose donations received by the CR17 campaign as he did not personally benefit from them.
‘Transparency and accountability’
However in a dissenting judgment, Mogoeng shared a different view.
“I read the main judgment written by my Brother Jafta J with great interest and thankfully ride on the facts set out in it, subject to contextual modulation. Sadly, we part ways on the approach, the reasoning and the outcome, save where the contents otherwise indicate,” Mogoeng said in court papers.
He argued that the case was fundamentally based on transparency, accountability and ethical leadership, further pointing out that “philanthropic gestures” were a threat to good governance.
He said that how Mkhwebane conducted her investigation into the CR17 campaign did not seem to be a” consequence of some inexplicable fishing expedition or of being unduly or overly suspicious of the President”.
“Honourable Maimane asked her to look into a potentially compromising donation to the President which, as stated, we now know was to the CR17 campaign and alluded, albeit not in so many words, to a possible conflict between the President’s official responsibilities and his private interests by mentioning the billions of Rands received by African Global Operations [formerly Bosasa] in irregular state tenders,” he said.
The Chief Justice also said the supreme law forbad Cabinet members or members of the executive from exposing themselves to the risk of conflict between “official responsibilities and private interests”.
‘Ramaphosa should have disclosed CR17 donors’
He said he believed that Ramaphosa violated the law in not disclosing the donors to the CR17 campaign to the National Assembly.
“Financial assistance from individual donors and even the composite amount from the CR17 Campaign, as an entity, constituted a personal benefit to the President and created a situation that involved a risk of conflict between the President’s private interests, his pursuit of the ANC Presidency with the assistance of private donors, and his official responsibilities as Deputy President of the Republic, Member of Parliament, Leader of Government Business in Parliament and even as President of the Republic.
“The President should, in his view, while still a Member of Parliament and Deputy President, have disclosed the sponsorship to the National Assembly as enjoined by the Constitution, the Members Act and the Code.”
Mogoeng further held that the emails which Ramaphosa conceded were authentic and true revealed that “he deliberately represented a falsehood” to Mkhwebane.
“And this together with his failure to disclose the private donations to his campaign ran against the very essence of his obligations laid out in [numerous] sections of the Constitution and the values of transparency and accountability on which our democratic state was founded.”
Ramaphosa welcomes ruling
Meanwhile, Ramaphosa has since welcomed the ConCourt’s ruling.
“President Cyril Ramaphosa welcomes and respects the ruling by the Constitutional Court today, Thursday, 1 July 2021,” the Presidency said in a statement.
— Presidency | South Africa ???????? (@PresidencyZA) July 1, 2021