The Financial Intelligence Centre (FIC) gave Public Protector Busisiwe Mkhwebane far more financial information relating to bank accounts used by President Cyril Ramaphosa's successful CR17 campaign than what she had initially asked for.
The FIC's decision, which was signed off by director Xolisile Khanyile, to provide the information to Mkhwebane, as well as her decision to use the information as evidence in her report, were both unlawful, Ramaphosa contended in court papers.
Ramaphosa also accused Mkwhebane of conducting a fishing expedition by investigating the CR17 campaign, saying the complaints filed to her office were used as a "useful cover for what was her real investigation", meaning the campaign and its donors.
CR17 campaign members interviewed by Mkhwebane confirmed to News24, on condition of anonymity, that she had asked them directly for the names of Ramaphosa's donors.
In a supplementary affidavit filed by Ramaphosa as part of his ongoing review application of Mkhwebane's report that found he had lied to Parliament, the president revealed Mkhwebane had requested only one month's worth of bank statements from the FIC.
Her request to the FIC was specific to information surrounding corruption-accused Bosasa CEO Gavin Watson's R500 000 donation to the CR17 campaign, contrary to her statements she had requested more from the FIC.
Mkhwebane got far more than she bargained for, it seems, when the FIC responded to her request with a full 10-page report and more than two years' worth of bank statements showing hundreds of transactions by several CR17 entities - not just the entity she had asked for.
Ramaphosa's affidavit is blistering of Mkhwebane's conduct, accusing her of failing to follow standard investigative procedures and reaching irrational conclusions based on the evidence that was before her.
The affidavit sets out reasons why he believes Mkhwebane:
- Unlawfully extended the scope of her investigation to include details of the CR17 campaign funding, which was never part of the original complaints by the DA's Mmusi Maimane and EFF's Floyd Shivambu;
- Breached the FIC Act by using intelligence the centre provided to her - unasked for - as evidenced in her report;
- Sought information under false pretences by issuing subpoenas and requesting bank statements from individuals from the CR17 campaign she had already interviewed, despite having already obtained the same financial information from the FIC, and failing to disclose this to any of the CR17 members she interviewed, including Ramaphosa;
- Included the CR17 bank statements in a "capricious and arbitrary manner" as she made no findings with regard to the CR17 campaign, but included the financial information in her report;
- Infringed on Ramaphosa's right to question Watson, and potentially lied in her report by stating Watson had not been willing to be questioned by Ramaphosa, while correspondence now before the court proves Mkhwebane had in fact insisted on Watson answering Ramaphosa's questions in writing.
Mkhwebane is expected to file a responding affidavit in due course.
Banking on the FIC
The bank statements Mkhwebane obtained from the FIC were leaked to various media houses hours after Deputy Judge President Aubrey Ledwaba granted an order effectively sealing the court.
Mkhwebane has confirmed she obtained the bank statements from the FIC. She filed a request for the information to the FIC in February 2019.
The FIC responded with a report, including information from CR17 entities that Mkhwebane did not request on March 19, 2019, with a letter signed by Khanyile.
His letter stated clearly Mkhwebane could only use the report as intelligence, and not as evidence, adding the use of the information in any manner other than prescribed would constitute a criminal act.
"It is clear from this letter that the FIC sent the Public Protector more information than what she had asked for. This conduct on the part of the FIC could have been innocuous, but it was unlawful," Ramaphosa's affidavit read.
"There is no explanation why the FIC gave the Public Protector information which was not requested. Once it was received, despite not having been lawfully obtained, the Public Protector was not allowed to use the information as evidence."
A source with intimate knowledge of Ramaphosa's affairs told News24 the steps taken by the FIC to disclose the CR17 information was unprecedented.
"Under former FIC director Murray Michell, not even at the height of the court battles between Pravin Gordhan and the Gupta family, did the FIC ever disclose a single bank statement," the source said.
The supplementary affidavit comes after the president's legal team was able to examine the Rule 53 record that Mkhwebane filed with the Gauteng High Court in Pretoria last month.
According to the rules of court, when a legal review is brought of a report such as Mkhwebane's, all the records - every document, letter, transcripts of interviews and every piece of evidence - must be filed as part of the court application.
The report centres around Ramaphosa's response to a follow-up question during a sitting of the National Assembly in November last year from Maimane.
Maimane asked Ramaphosa about a R500 000 payment from Watson through a Bosasa front company called Miotto Trading, for the benefit of Ramaphosa's son, Andile.
Ramaphosa responded that the payment was above board, but later corrected his oral reply in a letter to the speaker, saying it had in fact been a donation to his CR17 campaign from Watson, and that at the time he responded to Maimane he had not been aware of the fact.
Mkhwebane found "suspicions of money laundering" were substantiated, that Ramaphosa failed to declare the benefit he accrued from Watson's donation to Parliament and deliberately misled Parliament.
Friends of the court
News24 has learned the Information Regulator, a statutory body that oversees the enactment of the Protection of Personal Information (POPI) Act, is seeking to join the application as a friend of the court.
The EFF is similarly seeking leave to join the application.
On Wednesday, the regulator's chairperson, advocate Pansy Tlakula, confirmed to News24 the Gauteng High Court in Pretoria would hear an application to join the proceedings on October 3.
Affidavits are set to be filed by September 23.
Tlakula said the regulator's interest was based on a neutral position and it was seeking to create jurisprudence around the act.
"Because there were issues raised over the protection of private information in court papers, we are merely seeking to assist the court in clarifying the new legislation as custodians of the act," she added.