Sorry, Julius, but you won’t be privy to Cyril’s bank records

The bank records of the “CR17" campaign that saw Cyril Ramaphosa elected ANC president in 2017 will remain sealed for now, after the high court dismissed an EFF application seeking public access.

The now-famous bank statements were obtained by public protector Busisiwe Mkhwebane from the Financial Intelligence Centre (FIC) in her infamous and unlawful investigation into the campaign. When she released her report, which has since been set aside as unlawful, she revealed the campaign had raised millions of rand.

While Mkhwebane’s suggestions in her report of money laundering and “some sort of state capture” have been emphatically rejected by the courts, her revelations raised questions about transparency regarding internal political party campaign funding — and the EFF has been campaigning for the disclosure of the statements.

When Ramaphosa went to court to review and set aside the report, Mkhwebane put the bank records before the court, which would normally make them public documents. However, at the request of the president’s lawyers, deputy judge president Aubrey Ledwaba sealed them from the public, saying if anyone wished to challenge this they could raise it “in court”.

It was not raised during the court hearing in the case between the president and the public protector. But after the high court judgment, the EFF brought a new and separate case to unseal them.

He also agreed with the argument made by the CR17 campaign managers that if the EFF wanted to challenge Ledwaba’s directive, it could have done so when the matter was first in court — 'and the applicant did not make such an application'.

In his judgment, delivered on Tuesday, Pretoria high court judge Cassim Sardiwalla said the EFF had relied on Section 19(1) of the constitution. The section guarantees citizens the freedom to “make political choices”, including the right “to campaign for a political party or cause”.

Sardiwalla said the right to make free political choices included “the freedom to choose one’s leaders” and this also meant having sufficient information to do so.

However, he said “from reading the section” it was individual members of a political party and not the party itself that held the right. In any event, said Sardiwalla, the EFF had failed to show in its papers “how its right under this section had been affected, if at all”.

He also agreed with the argument made by the CR17 campaign managers that if the EFF wanted to challenge Ledwaba’s directive, it could have done so when the matter was first in court — “and the applicant did not make such an application”.

Once the bank records were sealed, they were no longer part of the court record, he said.

Sardiwalla said he endorsed the principle of open justice, but it was not absolute.

He also agreed with the argument by the FIC that Mkhwebane had ignored legislative safeguards on its records when she put them before the court and, even after she did so, they remained confidential.

Sardiwalla said once Mkhwebane received the records from the FIC she was duty bound to conduct her own investigations, yet did not.

“Of significance also is that the review court found that the FIC record was irrelevant to the proceedings and was inadmissible as evidence. As such the FIC’s confidentiality remained undisturbed,” said Sardiwalla.