EFF seeks to challenge CR17 bank records decision

12 August 2021 - 14:08 By Franny Rabkin
President Cyril Ramaphosa. File photo.
President Cyril Ramaphosa. File photo.

The EFF has applied to appeal against the court order that refused public access to the CR17 bank records, saying the order “endorsed secrecy”, whereas open justice has been the position of the courts all along.

The CR17 campaign saw President Cyril Ramaphosa elected president of the ANC in December 2017.

The bank statements — detailing the transfers of millions of rand in donations into and between various bank accounts associated with the CR17 campaign — were handed in to court by public protector Busisiwe Mkhwebane when Ramaphosa challenged the lawfulness of her now infamous CR17 report, which found that Ramaphosa had misled parliament about one of the donations to the campaign, had breached the executive ethics code and even directed an investigation for money laundering.

Ramaphosa’s review challenge was successful and the Constitutional Court recently confirmed that Mkhwebane’s investigation and report were unlawful and Ramaphosa did not have a duty to publicly disclose the donations to the campaign. However, documents handed in to court are normally public documents.

In the review case, Ramaphosa’s lawyers asked for these to be sealed and deputy judge president Aubrey Ledwaba agreed, with the proviso that anyone with an objection may raise this “in court”. No-one did so during the main review application. But later, the EFF brought a separate case to unseal the bank statements.

Last month, Pretoria high court judge Cassim Sardiwalla dismissed the EFF’s case.

The party has now applied for leave to appeal to the Supreme Court of Appeal.

“The judgment contradicts no fewer than three Constitutional Court and/or Supreme Court of Appeal judgments on the open justice principle. With respect, this requires attention from the appellate courts, particularly if this judgment becomes the new precedent ... with cases being conducted partially in secret,” said the EFF’s application.

The application said that once a review of a decisionmaker was launched in court, the rules of court require that the documents relied on by the decisionmaker, or the Rule 53 record, “in its entirety becomes disclosable”.

The EFF also said that, because the sealing was done in a case management meeting and not through a formal legal process, it created a “reverse onus” on the EFF to justify why the bank statements should be open to the public.

The right position, said the EFF, was that the president should have justified why the documents should have been sealed.

“The sealing was obtained without notice, and was not in open court. This in inimical to not only how justice is done, but in how justice is seen to be done,” said the EFF’s application.

The application said that the sealed records were “fundamental for our democracy” — in relation to the right to vote and the principle of open justice. The documents had also already been leaked, said the application, and were thus already in the public domain.

“Yet, and solely because of Ledwaba DJP’s directive, and now the court a quo’s judgment, the EFF is barred from making public any material that is sealed.”