The ANC has bluntly told embattled Public Protector Busisiwe Mkhwebane that she does not have the jurisdiction to investigate President Cyril Ramaphosa’s leaked comments that state funds were being used to bankroll internal ANC election campaigns.
This was conveyed in a letter written to her by ANC treasurer-general Paul Mashatile, who is also performing tasks in the office of the secretary-general of the party.
And in another development signalling the tightening of the noose around Mkhwebane’s neck, National Assembly Speaker Nosiviwe Mapisa-Nqakula wrote to the Constitutional Court on Friday, pleading that it was in the public interest to hand down its judgment on Mkhwebane’s application to reverse the pro-impeachment ruling against her before May 4.
Mapisa-Nqakula said this was because the committee investigating the Public Protector’s fitness to hold office had already developed a timeline for the impeachment proceeding against her.
Last Friday, Mkhwebane applied to the Constitutional Court to rescind its ruling that allowed the Parliamentary investigation to go ahead, alleging six issues of “patent errors” and ambiguity. She had also requested that Parliament freeze the process pending the outcome.
Mapisa-Nqakula’s letter came a day after Ramaphosa served Mkhwebane with a notice of suspension. His letter also asked her to explain why he should not suspend her during the Parliamentary inquiry into her fitness to hold office, and gave her 10 days to respond. This letter has been viewed as a mere legal formality.
MASHATILE PLAYS HARDBALL
Mkhwebane’s office is handling last month’s complaint by ANC MP Mervyn Dirks, who alleged that Ramaphosa’s statements in the leaked audio recording made during one of the governing party’s national executive committee meetings were in violation of the executive ethics code. The law gives her office 30 days to conclude the investigation.
Mashatile’s letter marks the second time that the governing party has shielded Ramaphosa from questions on his leaked remarks that his opponents in the ANC stole public funds to contest the party’s presidency against him in 2017.
Last month, the ANC used its majority in Parliament to prevent the standing committee on public accounts (Scopa) from summoning the president to give oral evidence on the matter.
Luthuli House insiders said that Mashatile, in his role as caretaker of the ANC secretary-general’s office, received the request for information from Mkhwebane’s office three weeks ago. She had requested the complete audio recording of the discussion that led to Ramaphosa’s remarks.
In Mashatile’s response to Mkhwebane, which City Press has seen, he wrote: “With reference to section 182 of the Constitution … in terms of which you purport to conduct an investigation … you have the power to investigate any conduct in state affairs or in the public administration in any sphere of government (my emphasis) that is alleged or suspected to be improper or to result in any impropriety or prejudice.
“It follows from the above narrative that, in order to exercise the jurisdiction that you have assumed, the conduct complained of must meet the following two requirements.”
Mashatile listed these as the conduct having to emanate from state affairs or the public administration, and having to fall squarely within the ambit of the code of ethics set out in section 2 of the Executive Members’ Ethics Act and amplified in Proclamation R4l of 2000.
He continued: “The ANC is not convinced that the complaint lodged by Dirks and your subsequent inquiry meet these legal requirements and is of the view that, under the circumstances and having had regard to the nature of the complaint, you do not have the necessary jurisdiction to conduct such an inquiry and to request documents and information from a private voluntary association, as you have done in your letter under reply.
“The ANC requires an unambiguous response, as a matter of urgency, which clearly expresses the basis upon which you purport to exercise jurisdiction in this particular matter.”
chief parliamentary legal adviser Advocate Zuraya Adhikarie wrote:
For the record, he added: You are aware that [Scopa] in Parliament is seized with the matter at the instance of a complaint lodged by Dirks, an erstwhile member of that committee.
The legal opinion that Scopa obtained cited Mkhwebane as the only authority who could determine whether Ramaphosa had broken the law by failing to declare his knowledge of state money allegedly illegally used by his rivals to pay for their ANC presidential bid in 2017.
On January 18, chief parliamentary legal adviser Advocate Zuraya Adhikarie wrote: The breach of the ethics code falls within the purview of the Public Protector, who is responsible for making such a determination. The focus should therefore be on what information the president has on the matter that can assist Scopa in fulfilling its oversight mandate
PARLIAMENT IN A HURRY
In her letter to the Constitutional Court’s chief registrar, Mapisa-Nqakula – represented by the State Attorney – sensitised the court to the necessity of delivering the rescission ruling before the May 4 commencement of the impeachment process.
“We are further instructed by the Speaker to respectfully request that, if the acting chief justice decides to issue directions for the filing of papers by the parties, then, if at all possible, in the light of the public interest in the finalisation, one way or the other, of the process for the impeachment of the Public Protector, such directions be aimed at enabling this court to reach a decision on the rescission application before May 4 2022,” the State Attorney wrote.
On May 4, the committee is scheduled to commence hearing evidence from witnesses and, on May 31, it will start hearing the Public Protector’s evidence.
MKHWEBANE CITES SEPARATION OF POWERS
On the same day, Mkhwebane wrote to Mapisa-Nqakula through her lawyers, Seanego Attorneys, stating that, while the last decision not to accede to her request for the parliamentary proceedings to be halted had been based on the fact that no legal proceedings were pending before any court, “the situation has changed fundamentally”.
She confirmed that she had filed the rescission application before the Constitutional Court last Friday, stating: “The main thrust of the relief sought herein is to set aside the said judgment, more particularly insofar as it pertains to the constitutionality or otherwise of the involvement of a judge in the relevant panel which triggered the formation of the committee.
“The central issues pertain to the findings on separation of powers and the absence of any constitutional powers for the Speaker to appoint a judge to any office in the legislative sphere. These are fundamental and weighty questions of law,” wrote Mkhwebane.
“The purpose of this letter is to formally inform you of the above and also, most importantly and in the spirit of cooperative governance, to request that you take whatever steps are necessary towards ensuring that the process will not continue while the matter is before the courts. As you know, rule 89 prohibits the National Assembly from discussing an issue which is sub judice.”
HOW THE ANC SCUPPERED SCOPA
On February 16, ANC MPs used their majority in Scopa to torpedo the proposal that Ramaphosa be summoned to give oral evidence, saying that it was sufficient that he had stated that he did not have any information on the alleged misuse of state funds for ANC internal elections.
ANC MP Bheki Hadebe said at the time that Ramaphosa should be “given the benefit of the doubt because he is a man of integrity”. The ANC outvoted the opposition by six to four.
In his written response to Scopa at the time, Ramaphosa confirmed that the leaked recording contained statements he had made at a meeting of the ANC national executive committee.
However, he said he had no direct or personal knowledge, other than this publicly available information, of who had used public funds, from which institutions or entities they had sourced these funds, how the misuse of public funds had happened and for whose benefit these funds had been used.
In the leaked recording of the ANC meeting, Ramaphosa – who stood accused of using hundreds of millions of rands to campaign for his presidential election – declared that he knew his opponents had stolen state money from the State Security Agency to finance their campaign, but he preferred to keep silent and “fall on his sword” to shield the party’s reputation, rather than use the scandal to his political advantage.