Laying The Groundwork - CR17 And The Challenge To The Executive Ethics Code

Introduction

In September 2021, amaBhungane returned to the Pretoria High Court for it to hear whether the Executive Ethics Code (the Code)[i] is unconstitutional if it does not require members of the Executive to disclose donations made to their campaigns for positions within political parties. To situate this challenge, this brief sets out the legal framework of ethical conduct for members of the Executive, and the circumstances which led to amaBhungane’s case – the failure of President Cyril Ramaphosa to disclose to the National Assembly (NA) a donation received in his 2017 campaign for the leadership of the African National Congress (ANC) (the CR17 campaign), the report by the Public Protector (PP), and the resulting court action. The next brief will explain why amaBhungane’s case is an important one by displaying the problems that arose from the President’s apparent ignorance of donations to the CR17 campaign.

Brief Explanation Of The Ethics Act And The Code

“Ethical politicians” need not be an oxymoronic phenomenon. In fact, the Constitution demands that it is not, since section 96 states that members of the Cabinet must act in accordance with a code of ethics set out by national legislation. In line with this constitutional obligation, the Executive Members’ Ethics Act[ii] (the Act) was passed and the President promulgated the Code as demanded by the Act.[iii]

The Act and the Code set out provisions dealing with the general standards in terms of which members of the Executive must execute their duties, the disclosure of financial interests, prohibited conduct, the prevention and declaration of conflicts of interest, and the acceptance of gifts. The Act provides that the PP is responsible, upon the receipt of a complaint from certain parties[iv] that an alleged breach of the Code has occurred, for investigating such breach and submitting a report on the breach within 30 days of receipt of the complaint. Though the provisions of the Act and the Code are sensible, amaBhungane’s challenge suggests a major flaw in the disclosure obligations of the Code, which could allow potentially corrupt behaviour to prosper.

The Chronology

To situate amaBhungane’s challenge, it is necessary to provide a condensed explanation of the sequence of events leading up to the challenge. On 06 November 2018, during a question session 
in Parliament, President Ramaphosa was asked about a R500 000 payment allegedly made to his son from the Chief Executive Officer of Bosasa (now Africa Global Operations (AGO)), a firm that had scored lucrative government contracts. The President replied that the money was received by his son in return for financial consultancy services provided to AGO.

On 16 November 2018, the President wrote a letter to the Speaker of the NA, saying that he had inadvertently provided incorrect information, and that while his son's company did have a contract with AGO for the provision of consultancy services, he was subsequently informed that the payment in question did not relate to that contract. Instead, it was a donation to a campaign established to support his candidature for the Presidency of the ANC in 2017, and that he was not aware of the existence of the donation at the time that he answered the question in the NA.

Upon the reception of complaints about this about-turn, the PP investigated the matter, and in July 2019, she published a Report[v] which found that the President had violated the Code by misleading the NA about the donation, by exposing himself to a situation involving the risk of a conflict between his official responsibilities and his private interests, and by failing to disclose the R500 000 as a financial interest. She found that campaign pledges to the CR17 campaign were a form of sponsorship which benefitted the President in his personal capacity, and donations to the campaign should therefore have been disclosed as per the Code. The PP thus recommended that the Speaker of the NA refer the President to the Joint Committee on Ethics and Members’ Interests for consideration and demand publication of all donations received by the President. The President responded by seeking judicial review of the PP’s report.

Court Action

On 10 March 2020, the High Court handed down its judgement setting aside, for various reasons, the decision by the PP to investigate and report on the CR17 campaign, the report’s findings and the remedial orders.[vi]

Pertinent to this brief is the reasoning pertaining to whether donations to the CR17 campaign should have been disclosed by Ramaphosa in line with the disclosure obligations in the Code. The PP’s report had answered this in the affirmative, finding that the donations constituted a “direct financial sponsorship... from a source other than the member's party which benefits the member in his or her personal and private capacity”, which had to be disclosed under paragraph 6 of the Code.

The Court found that this was not so because no donation had benefitted the President in his personal capacity – neither he nor his family had received any funds from the campaign. The court went further and analysed whether there was any other basis upon which the President could have been expected to make disclosure of the donations. The Code contains a widely-phrased paragraph which requires disclosure of “any other benefit of a material nature”. The court held that the Code requires only a disclosure of a financial interest, and the nature of the benefit received by the President from the CR17 campaign was not a financial benefit but a political benefit– a position in a political party. The court stated that neither the Act nor the Code contemplated the disclosure of intangible benefits gained through internal political party donations.

This decision was appealed by the PP to the Constitutional Court (CC), and on 1 July 2021, the CC upheld the order by the High Court.[vii] The majority of the court stated that upon the facts, the President did not personally benefit from the donations made to the CR17 campaign– he himself received no donations, he had no claim to money donated to the campaign, and that the campaign existed separately from him. The duty to disclose was therefore not triggered.

The court then considered that the contention that there was a personal benefit derived from donations made to the CR17 campaign because it promoted Ramaphosa becoming President of the ANC, which was a step towards becoming President of the country, was attractive, but that it could not withstand scrutiny. This, the court stated, was because the Code only deals with state affairs, and being President of a political party is not a guarantee to being President of the country, since the President of the country is elected by the NA.

Extrapolating from the court’s logic, donations to any politician’s political campaign will never be disclosable under the Executive Ethics Code, or the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (Parliamentary Code of Conduct),[viii] because the donation may aid the politician in achieving a position in a political party, but not necessarily in the Executive or Parliament. Enter amaBhungane.

Amabhungane’s Involvement

AmaBhungane, an independent, non-profit organisation, entered the fray as a respondent in the High Court. AmaBhungane argued that if the court found that the Code does not require disclosure of funding for internal party-political campaigns, then the Court should declare that the Code is unconstitutional.

AmaBhungane reasoned that in order to properly exercise the right to vote, voters need information. So far as the Code does not allow voters to know about donations to politicians’ political campaigns which may “reveal ulterior motives or hidden political agendas” of politicians,[ix] the Code violates the right to vote and right to access to information under sections 19 and 32 of the Constitution.

Next, amaBhungane argued that secrecy in donations to political campaigns may enable corruption by creating an atmosphere in which politicians may favour private donors once they are elected into public office. This would result in a breach of the constitutional obligation for members of the Executive not to expose themselves 
to any situation involving the risk of a conflict of interest; and not to use their position to enrich themselves any other person.[x]
 AmaBhungane argued that in line with the state’s duty to combat corruption,[xi] the Code should shield against these potentially corrupt acts by requiring disclosure of donations.

The High Court dismissed the challenge, finding that the arguments made were compelling, but had to fail because amaBhungane had not considered whether the Promotion of Access to Information Act 2 of 2000 could be used to obtain the information, and that a constitutional challenge should have been made either to that Act, or the Ethics Act.[xii]

In July 2021, the CC found that the High Court had erred in concluding that amaBhungane’s challenge was not properly before it, and that the court should have considered the merits of that claim. It therefore found it appropriate to remit the matter to the High Court for adjudication. On 7 September 2021, the matter was heard once again in the Pretoria High Court.

Conclusion

This brief lays out the content of the code of conduct that governs the Executive, and explains the relationship between the CR17 campaign and the Code. This brief has not engaged with the various flaws in the PP report but merely deals with it to the extent that it finds that donations to presidential campaigns must be disclosed under the Code. This finding by the PP was made ultra vires and was rightly rejected by the courts, but it raises an issue that is massively important for transparency and accountability. For this reason, amaBhungane must be lauded for following through on the need for disclosure of donations to internal party campaigns. The next brief considers the limits of amaBhungane’s case, and explains why disclosure of politicians’ donors is important.

Zeenat Emmamally
Legal Researcher
zeenat@hsf.org.za

[i]Government Gazette No 21399 of 28 July 2000, available here.