The high court will hand down judgment on Tuesday morning on whether the public should have access to the bank records of the “CR17” campaign that saw Cyril Ramaphosa elected president of the ANC in 2017.
The records were obtained by public protector Busisiwe Mkhwebane in her CR17 investigation, which has now been confirmed unlawful by the Constitutional Court. But the bank records were handed in to the high court by Mkhwebane when the president challenged her report.
When she first released her report, Mkhwebane said that the records, obtained from the Financial Intelligence Centre (FIC), revealed that the CR17 campaign had raised millions of rand and found that this gave rise to a “risk of some sort of state capture”. She directed the speaker of parliament to require Ramaphosa to disclose his donors.
All this has been set aside by the courts. But under the rules of court, documents submitted to court usually puts them in the public domain. This time though, at the request of the president’s lawyers, deputy judge president Aubrey Ledwaba sealed the bank statements from the public, saying if anyone wished to challenge this they could raise it “in court”.
It was not raised during the court hearing. But after the high court judgment, the EFF brought a new and separate case to unseal the record.
During argument, the EFF argued that when information that was supposed to be public was kept confidential, there was a danger that politicians would use public office to further the agendas of benefactors.
“That is the danger of secrecy,” said EFF counsel Ishmael Semenya SC.
Semenya said the EFF’s case was based on its constitutional right in section 19 of the constitution — to campaign for a political party or cause. The party was entitled to advance a political campaign which was to deal with corruption, he said.
Semenya said while Ramaphosa’s campaign team had argued that the CR17 campaign was for a private, internal ANC election, “by the extension of the law and the constitution” the inevitable consequence was that it would lead to Ramaphosa being elected president of the country.
Ramaphosa knew this and had admitted as much during his interview with Mkhwebane, Semenya argued.
However, counsel for Ramaphosa, Wim Trengove SC, argued that the EFF had full access to the CR17 bank statements, but did not consider them relevant enough at the time to include them in the original court battle between Ramaphosa and Mkhwebane.
Instead “they come a year later and suggest that the order [sealing the bank statements from the public] was somehow improperly granted”, he said.
Counsel for the EFF and investigative journalists amaBhungane had argued that, according to the principle of open justice — a fundamental constitutional principle — the default position when it came to court documents is that they are public documents.
Junior counsel for the EFF, Kameel Premhid, and counsel for amaBhungane, Tshidiso Ramogale, both emphasised that this rule did not belong to the litigants but to the public — rooted in the principle that justice must be seen to be done.
Openness was the rule and confidentiality the exception, they argued.
But Trengove said, while this was true, the principle of open justice did not apply to the facts of this particular case. This was because the bank statements never actually became part of the court record.
Trengove distinguished between a rule 53 record — all the documents that the decisionmaker looked at to reach her decision — and a court record — all the documents considered relevant to the case by the parties and which therefore get put before the judge.
Here, while the parties had an opportunity to look at the bank statements and include them in the court record if they considered them relevant, they chose not to.
While EFF counsel Semenya had rejected this as “a distinction without a difference”, Trengove said this was not merely a linguistic differentiation.
The principle of open justice was rooted in the rule that court hearings must be public, with public access to documents as “concomitant” to the principle of open courts. Documents not relevant for the decision of the court did not fall within the purview of the open justice rule.
The FIC argued that even if the high court granted the EFF the court order it wants to unseal the CR17 bank records, they would still be protected from public disclosure under the Financial Intelligence Centre Act.
By Franny Rabkin – TimesLIVE