Former Chief Justice Mogoeng Mogoeng said the court-sealed CR17 bank statements which saw President Cyril Ramaphosa rise to power, should be opened to the public.
In a rebuke of Ramaphosa’s CR17 campaign, Mogoeng said there was no such thing as a free lunch and the public had every right to know who had helped fund Ramaphosa’s ascension to the presidency of the African National Congress (ANC) and ultimately, the country.
Mogoeng was speaking at the inaugural SAfm public lecture at SABC in Auckland Park, where he referenced his dissenting judgment in the July 2021 matter of the Public Protector versus President.
The Constitutional Court at the time set aside the findings of Public Protector Busisiwe Mkhwebane that Ramaphosa had acted unlawfully relating to donations made to his CR17 campaign.
The ConCourt found Mkhwebane made errors in fact and law in making the findings that the president had acted unlawfully, and that she acted outside the scope of her powers by investigating the funding of the CR17 campaign.
Mogoeng, who penned a dissenting judgment in the same matter, said the president relied on a technicality, but had ultimately lied, in that he said he had limited knowledge about who the funders of the CR17 campaign were.
He said emails, supposedly stolen or intercepted, showed that the president knew, yet he nor his CR17 campaign ever explained why they misled the Public Protector.
“The president therefore had the duty to know, if he did not know already who was funding his campaign and to disclose that personal benefit compositely as a benefit from the CR17 campaign as an entity and or more appropriately from each donor with a specified amount.
“Why? So that Parliament and the public could know who was helping or had helped him to perform better than his competitors and enabled him to become ANC president, and a few months later, president of the Republic.
“The possibility of an unhealthy relationship with donors and the risk of conflict between the deputy president's official responsibilities as he then was, and his private interest as the enabled most senior political party functionary could then be closely watched to check whether the financial support had induced him or repositioned his disposition or heart to the point where his commitment to his constitutional obligations was in any way compromised or his government's treatment of funders was more favourable than of those who did not fund him or gave less.
“This is what the foundational values of openness and accountability as well as the regulatory framework, properly understood, seek to address,” said Mogoeng.
Mogoeng said a whistle-blower revealed emails which exposed that Ramaphosa's version that he had been “strategically kept ignorant”, was not true.
“The president says repeatedly that he was not afforded the opportunity to be heard before the emails were finally relied on that they were stolen or irregularly obtained from the CR17 campaign computers and because they constitute improperly obtained evidence, that irregularity alone is sufficient to vitae the entire report.
“The president effectively acknowledges the existence and admits the authenticity of the emails he confirms that there are indeed communications between him and among others, the CR17 campaign team contained in the computers of the CR17 campaign he demands more than once that the public protector should explain to him how and from whom she obtained this admittedly truthful but reputationally damaging emails.
“Not once does he explain why he and his team chose not to tell the truth, but to rather mislead the public protector as he did. Instead, he says that the emails are in any event irrelevant to the public protector's findings, but that cannot be correct, for not only are the emails relevant, but they also expose the falsehood of the version that the president and the CR17 campaign managers to present to the public protector and it be repetition that the false version is that there was a deliberate plan to ensure that the president does not get to know who the donors were, how much they donated and how the financial assistance received for his campaign was being used.
“The email squarely bely this assertion, the question that we should be asking ourselves is why did the president and his team deliberately convey a falsehood on an issue so crucial and inextricably connected to the Constitutional imperative to promote and observe high ethical standards in obedience to the demands of our democratic states’ founding values of openness and accountability.
“He must have known that if the truth of the evidence by the emails were to be told, there would be an obligation to disclose the names of the funders and the size of their contributions to the National Assembly,” he said.
Mogoeng said this would have allowed the public to monitor if such donors did not benefit unduly in the public sector.
“What the president self-evidently did was choose to undermine and frustrate the efforts of that office to fulfil its constitutional obligations by not just withholding the truth but deliberately asserting the opposite of it.
“Furthermore, the president is obliged by Section 962b of the Constitution to not act in anyway that is inconsistent with his office. This section is the Constitutional source of the high ethical standards by which the president is supposed to lead this nation,” he said.
However, Mogoeng said Ramaphosa “strategically and intentionally’ gave a false version to the public protector who was probing a possible ethical breach.
“Lest we forget, we are not dealing here with an average citizen, but with the bearer of specific and frighteningly weighty constitutional responsibilities who is expected and required to lead by example and be above reproach. His office demands of him to be the lighthouse, the pathfinder and the embodiment of and the vessel for the enforcement of high ethical standards, particularly the Constitutional values of our democratic state.
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