The Economic Freedom Fighters (EFF) has filed an application for leave to appeal a damning judgment in the Gauteng High Court in Pretoria last month setting aside Public Protector Busisiwe Mkhwebane's report into President Cyril Ramaphosa's CR17 campaign.
A full Bench of the High Court earlier this month delivered a scathing judgment setting aside Mkhwebane's report and remedial actions.
The Bench said she had demonstrated a basic misunderstanding of the law, had misquoted sections of the executive ethics code and showed a reckless determination to find against Ramaphosa despite the facts being clearly against her.
Mkhwebane found Ramaphosa had deliberately misled Parliament when he responded to a question over a R500 000 payment, at the time believed to have been made by corruption-accused company Bosasa. It later emerged the money was actually a donation to Ramaphosa's successful 2017 African National Congress (ANC) presidential campaign, CR17.
Mkhwebane also found "prima facie evidence to support suspicions of money laundering" in CR17's handling of donations to the campaign. She also found that Ramaphosa had failed in his obligation under the Executive Members' Ethics Act to declare the donations to Parliament.
But, Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley found Mkhwebane did not have the requisite jurisdiction to investigate donations to a private person's political campaign. They also found that he had no obligation to declare the donations, even if he was deputy president at the time, as he had derived no personal benefit from the donations.
The fourth respondent, being the EFF, in papers filed on Tuesday, disagree.
He personally put up R30-million for CR17
The EFF is asking the court to grant them leave to appeal the judgment, stating in papers seen by News24 that the court was setting dangerous precedents by failing to uphold Mkhwebane's finding that members of the executive did not need to declare financial benefits they accrued as a result of donations to a political campaign.
Ramaphosa, the EFF argues, obviously benefitted as he utilised the funds to increase the activities of a campaign that eventually saw him elected president of the ANC, and subsequently, the president of South Africa.
Ramaphosa previously argued that campaign donations were utilised to bolster efforts to get a wide variety of people elected to office in the ANC. He also pointed out that he had personally put up around R30-million towards the campaign, which he said in court papers dispelled any foundation to claims he benefitted personally.
The court agreed and found that Ramaphosa had no duty to disclose the donations.
The EFF is again arguing that Ramaphosa had a duty to disclose.
"The duty to disclose emanates from Section 94 (2) (b) of the Constitution, the [Executive Members' Ethics] Act and the [Executive Ethics] Code. The court's attempt to define the specific kind of benefit, in this instance, is misplaced because it fails to appreciate the true test – a risk of a conflict of interest," the EFF's papers read.
"The benefit is with respect, obvious: the president was boosted by the financial contributions to increase his campaign activities which was necessary for him to win his party's leadership."
Ramaphosa, the EFF argues, conceded in court papers that he had benefitted from the campaign and its financing.
Jurisdiction to investigate
Similarly, the EFF wants to challenge the court's finding that Mkhwebane did not have the jurisdiction to investigate CR17.
"The Public Protector always had jurisdiction to investigate same because the President's conduct in the realm of his political party threatened to expose him to the risk of a conflict of interest in his official capacity."
The court found it was unconvinced by arguments that the CR17 campaign fell within a hybrid definition of state affairs. It held Mkhwebane's powers of investigation were limited to state affairs.
"For state affairs to be given sensible meaning, it is to understand that a constitutional office-bearer's conduct in a private capacity can or could impact their conduct in an official capacity. It is for this reason the Public Protector can "look through" the public/private and state/party divide and investigate all matters that expose a member of the executive to the risk of a conflict of interest."
Ramaphosa also previously argued that he was purposefully kept in the dark on the identity of donors to his campaign to mitigate a risk of conflict of interest.
He wrote a letter to Parliament after realising the response he gave over the R500 000 payment was incorrect and after one campaign manager informed him the payment was actually a donation to CR17.
"By placing himself in a position of 'wilful ignorance', the President set in motion a series of events that had the purpose or effect of frustrating his duty to account to Parliament. The President's misleading of Parliament was deliberate because when he took the steps above, he knew (or ought to have known) it would mean he would not be able to account to Parliament for things that [he] had a duty to account for (i.e. everything)," the EFF argues.
"The court, with respect, erred, then, in preferring a view that undermines accountability."
It is not clear whether Mkhwebane will also file for leave to appeal, or whether Ramaphosa will oppose the EFF's application.