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Disclose your donors, Mkhwebane urged

Un­known donors: Pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane was or­dered by the Con­sti­tu­tional Court to pay a R260,000 per­sonal costs or­der, and the money was raised through crowd­fund­ing by an or­gan­i­sa­tion called Democ­racy in Ac­tion.

Public protector Busisiwe Mkhwebane has insisted that those who funded President Cyril Ramaphosa’s ANC election campaign would almost certainly expect favours in return from him — and argued that this is why Ramaphosa should be forced to disclose their identities. But now, after disclosing that “members of the public” paid the R260,000 personal costs order granted against her, will she subject her own donors to the same level of transparency that she demanded of Ramaphosa?

Public protector Busisiwe Mkhwebane has insisted that those who funded President Cyril Ramaphosa’s ANC election campaign would almost certainly expect favours in return from him — and argued that this is why Ramaphosa should be forced to disclose the identities of his donors.

That argument was rejected by the high court in Pretoria, which found, among other things, that Ramaphosa had not derived any personal benefit from the money raised to fund his election campaign.

Mkhwebane is attempting to appeal that ruling in the Constitutional Court.

But now, after disclosing that “members of the public” had paid the R260,000 personal costs order granted against her by the Constitutional Court, will the public protector subject these as yet unknown donors to the same level of transparency she demanded of Ramaphosa?

At least two legal experts believe she must.

“Nothing in the law appears to prohibit advocate Mkhwebane from receiving this donation to pay the personal costs order granted against her. But this does raise legitimate questions about her independence,” constitutional law expert Phephelaphi Dube told Business Day.

“In the same way that the public protector assumed CR17 donors would expect some kind of favour from him, the same logic could arise in respect of her legal bills. Due diligence requires her to know the source of the money donated to her.”

Lawson Naidoo, from the Council for the Advancement of the SA Constitution (Casac), agrees: “For someone in the public protector’s position to accept anonymous donations is highly problematic. She needs to know who her funders are in order to prevent any possibility of conflict — for instance, receiving money from someone who she is currently investigating.”

On Saturday, Mkhwebane revealed to parliament that an organisation called Democracy in Action had crowdfunded the R260,000 needed to pay the personal costs order issued against her by SA’s highest court. The Constitutional Court granted that costs order to indicate its displeasure with the bad faith and dishonesty Mkhwebane displayed in her invalidated SA Reserve Bank probe and subsequent unsuccessful efforts to defend it.

Efforts to contact Democracy in Action were unsuccessful, but a visit to its website confirmed that it has been running a “Hands off the Public Protector campaign”, which included requests for donations.

When Mkhwebane addressed parliament, she said she “only informed the people who were collecting the money that ‘this is the bill I have received’, and they paid the R260,000 which has been owed”.

Business Day has asked the public protector’s office if she intended to disclose the identities of her donors or was under any obligation to do so. At the time of publication, no response had been received. Given that Mkhwebane has been ordered to personally pay potentially massive legal costs bills in at least three other cases, Dube and Naidoo contend she will need to address these questions.

“If this is going to be a potential modus operandi for the public protector, relying on donors to pay costs orders granted against her, then it is crucial that there is transparency,” Dube said, adding that this was an opportunity to “raise the ethical bar”.

“Unlike in Ramaphosa’s case, when the court found that he had not directly benefited from CR17 campaign donations, these donations clearly constitute a direct personal benefit to Mkhwebane,” Naidoo said.

“Parliament exercises oversight over the public protector, and the justice committee will obviously need to demand answers about this.”

DA MP Glynnis Breytenbach, who is defending a defamation case launched against her by Mkhwebane, on Wednesday told Business Day she would “certainly” be asking the public protector about the legal costs donation she had received, as well as whether this donation had been declared to the SA Revenue Service.

For Mkhwebane, these questions arguably present a perfect opportunity for her to demonstrate the transparency she continues to demand of Ramaphosa.

If she fails to hold herself to the high standards she demands of him and demonstrate that these donations pose no threat of conflict of interest, she will struggle to avoid accusations that her independence has been compromised.

Perhaps more damaging, she will appear deeply hypocritical.

FOR SOMEONE IN THE PUBLIC PROTECTOR’S POSITION TO ACCEPT ANONYMOUS DONATIONS IS HIGHLY PROBLEMATIC