CR17 emails – smoke and mirrors or a final tripwire for Ramaphosa?

It is now very clear that those implicated in state capture are pulling out all the stops to try and trip up President Cyril Ramaphosa. Their own personal axe, Public Protector Busisiwe Mkhwebane has so many fires under her, she is about to combust. Today, the ombudsman was given another bloody nose when Ramaphosa’s urgent application to interdict Mkhwebane’s remedial action against Minister Pravin Gordhan succeeded. Judge Letty Molopa-Sethosa concluded that Ramaphosa took a rational decision not to implement Mkhwebane’s remedial action pending judicial review. The consistent defence line against state capture, our courts are holding up very well. The crowd baying for Ramaphosa’s head, believe they have found another weakness in the President; the leaked emails from the CR17 campaign and have used Twitter to stoke up support for their campaign against Ramaphosa. A selection of the emails has been circulating for a while among anti-Ramaphosa and Economic Freedom Fighter accounts and they are also in the possession of Mkhwebane. Ramaphosa’s enemies believe they prove that Ramaphosa was lying under oath when he said he did not know the identity of donors to the CR17 campaign. The amount spent on Ramaphosa campaign which is a whopping R200m has also been questioned. In this article in the Daily Maverick, Rebecca Davis unpacks the allegations around the CR17 emails to see whether they have any merit. – Linda van Tilburg

#CR17 email leaks: Separating the myths from the facts

By Rebecca Davis

What are the #CR17 emails, or as Twitter is calling them, the #RamaphosaLeaks?

They are a collection of emails which appear to have been sent between members of the team responsible for then-deputy president Cyril Ramaphosa’s campaign to win the presidency of the ANC running up to the vote to be held among delegates at the party’s Nasrec conference in December 2017.

A selection of the emails was first reported on by News24 on Saturday 3 August 2019, though News24 noted that the emails had previously been “circulated among [Ramaphosa’s] political opponents and by anti-Ramaphosa accounts on Twitter”.

It is believed that these are the emails which were first publicly referenced by Public Protector Busisiwe Mkhwebane in her July 2019 report investigating claims of an improper relationship between Ramaphosa and the company formerly known as Bosasa, which has been heavily implicated in State Capture at the Zondo Commission.

In that report – more about the report’s substance in a moment – Mkhwebane made repeated reference to being in possession of “evidence” in the form of emails regarding the #CR17 campaign.

News24 editor Adriaan Basson told Daily Maverick this week that News24 is planning to publish further stories based on the emails, but he made it clear that the collection is limited.

The quantity of emails that have been leaked from the CR17 server is not enough to call [them] a set of leaks yet. They are a few emails between President Cyril Ramaphosa and his campaign team, chiefly his executive assistant Donne Nicol, discussing potential and past donors to the campaign.”

Are the emails real?

It appears so. The Presidency has not sought to claim that the emails are not legitimate, but neither has it unequivocally confirmed their authenticity.

Presidential spokesperson Khusela Diko appeared to hint at their authenticity, however, when she described it as “concerning” that someone potentially “would have access to the head of state’s private communications”.

News24’s Basson told Daily Maverick: “Four sources with direct knowledge of the matter confirmed the authenticity of the emails”.

Where did they come from?

They were either leaked by someone close to the campaign or someone hacked into the email communications of one of the #CR17 masterminds — or of course Ramaphosa himself.

News24’s Basson told Daily Maverick that the emails were “received from a source”.

Public Protector Mkhwebane has refused to say where she obtained her copies of the emails, meanwhile, and her office will not currently comment any further on matters related to her report because it is under judicial review.

If Mkhwebane obtained the emails unlawfully and proceeded to make findings based upon this unlawfully obtained evidence, it opens up a whole different can of worms.

What do the emails say?

Those which have been reported on News24 thus far show correspondence relating to fundraising between CR17 campaign managers Donne Nicol, Marion Sparg and Ramaphosa.

There is also an email which appears to be from Ramaphosa to his banker, and another which was forwarded from Aspen senior executive Stravros Nicolaou to Ramaphosa by Nicol.

The emails all appear to deal with finances and fundraising for the CR17 campaign.

In them, Ramaphosa is requested by Nicol to personally call potential donors, including steel titan Mick Davis and Macsteel founder Eric Samson, to solicit donations or thank them for support.

In another, Nicol tells Ramaphosa that Public Enterprises Minister Pravin Gordhan has been “tasked” with raising “about R15m”, and that Gordhan “has got [Hosken Consolidated Investments CEO] Johnny Copelyn on board”.

In the email, which appears to be between Ramaphosa and his banker, Ramaphosa asks for the transfer of R20m between an account believed to be Ramaphosa’s to an account used as part of the campaign.

Is it wrong for Ramaphosa to have been involved in his own campaign’s fundraising?

Here’s where it starts getting important to separate fact from fiction.

Some people have expressed outrage at Ramaphosa’s personal involvement in fundraising for his presidential campaign, suggesting that this alone makes a mockery of his anti-corruption stance. The implication is that if Ramaphosa has received large donations from certain individuals, he will be expected to “return the favour” at some point during his presidency.

However, there is nothing wrong with this in law: it is not illegal for South African politicians to personally raise funds to support their campaigns for office. Indeed, it is standard practice — both in South Africa and within political systems all over the world. DA leader Mmusi Maimane was criticised in 2015 after failing to disclose his campaign contributions.

Of course, many people think the law should change. Even South Africa’s new Political Party Funding Act will not require individual candidates to disclose campaign funding.

There’s a strong argument to be made that greater regulation should be brought to bear on this type of fundraising, both in the interests of accountability and transparency and to prevent the possibility of candidates being “bought” ahead of an election via large donations.

But as far as the current law goes: Ramaphosa did nothing illegal by involving himself in fundraising for his own campaign.

Was it wrong for Pravin Gordhan to have assisted Ramaphosa with fundraising?

No. Ahead of Nasrec, it was widely known which of the two presidential candidates – Ramaphosa and Nkosazana Dlamini-Zuma – were supported by which Cabinet members. Gordhan has made no secret of his preference for a Ramaphosa presidency and was perfectly within his rights to support the campaign.

If Gordhan had used state resources to fly overseas on fundraising missions for Ramaphosa, it would be a different story — but the emails show that Gordhan’s travel and accommodation on one such mission was paid for by the #CR17 campaign.

EFF deputy leader Floyd Shivambu stated on Twitter that Gordhan’s travel costs in this regard were “never disclosed in Parliament”, and implied that it was an act of corruption for Gordhan not to have recorded this travel in Parliament’s annual register of Members’ Interests.

Gordhan’s office confirmed to Daily Maverick that the minister had indeed not declared this travel to Parliament.

But they argue that he was not required to.

Having regard for the rules of Parliament, as set out in the Code of Conduct for MPs, Minister Gordhan considers his involvement in the CR17 campaign to be party work he carried out in the course of the internal party process to elect a new president for the ANC,” Daily Maverick was told.

This was part of his political work from which he did not derive any personal benefit. Nor was any travel – domestic or international – a gift for his personal benefit or gratification or related to public duties as a Member of Parliament. He is not convinced that any declarations are required to be made to Parliament in terms of the Code of Conduct for MPs. CR17 was part of an internal campaign process within a registered political party in South Africa.”

Is Gordhan correct?

Daily Maverick’s parliamentary correspondent Marianne Merten says it’s a grey area, with Gordhan’s defence cleverly crafted in order to avoid such travel being classified as “sponsorship” from “non-party sources” – which would have to be disclosed.

The EFF has, to the best of my knowledge, not laid a complaint against Gordhan with the joint ethics committee. Not the one before the elections; not the one after the elections. So it’s cheap rhetoric to now finger him for the CR17 fundraising,” Merten says.

She adds: “It is important also to note that Gordhan makes, and has traditionally made, the most detailed disclosures [of any MP]. The EFF has used this to attack him for his shares in a host of companies. Remember, Malema and Shivambu for the past five years have disclosed almost nothing on shares, sponsorships, directorships, homes, pensions etc, though Malema has disclosed on trusts.”

Gordhan’s office also stated that the minister “derived no personal benefit or gratification from his political work to support the CR17 campaign. He supported the CR17 campaign to advance the prospects for good, ethical, rational and moral leadership under a Ramaphosa presidency”.

Have any of the donors to the #CR17 campaign improperly benefited from their support?

EFF leaders have retweeted a host of allegations in this regard, while the Sunday Independent makes similar claims.

One of the potential donors mentioned in the emails was South African-born mining magnate Mick Davis, who now lives in the UK and is involved in Conservative Party politics there.

An EFF tweet doing the rounds points out that Davis was appointed to the Eskom task team by Ramaphosa, and hinted that this is linked to the fact that Davis is a former CEO of mining company Xstrata, “which has coal contracts with Eskom”.

Davis told News24 that he did not donate any money to the CR17 campaign, and was not contacted by anyone to do so.

It is true that Davis was appointed by Ramaphosa to the Eskom task team in December 2018.

But Davis left Xstrata in 2013, just ahead of its merger with Glencore. Davis has decades of experience internationally at the top of mining and was a former executive director of Eskom in the early 1990s. It’s not hard to see that his experience would have been a boon to Ramaphosa’s team.

There is no evidence to substantiate the idea that Davis was appointed to the Eskom task team to benefit Xstrata/Glencore, or as a quid pro quo for the support offered to Ramaphosa. (Indeed, some might argue that being appointed to an Eskom task team is more of a punishment than a reward.)

The EFF has also alleged, in a tweet re-tweeted by Malema, improper benefits accrued through a donation by pharmaceutical executive Stavros Nicolaou:

The person who donated R20m to CR17 was awarded R1.9-billion tender to supply ARVs to the country. Connect the dots. Stop being dumb.”

Nicolaou works for Aspen – which was first awarded a tender to supply antiretrovirals in 2010, under the presidency of Jacob Zuma. In the most recent tender allocation, Nicolaou pointed out to Sunday Independent, Aspen’s share was reduced and the “lion’s share was awarded to other companies”.

Of all the donors now named as having given money to #CR17, the dodgiest by a mile is Bosasa’s Gavin Watson, whose R500,000 donation is what prompted Mkhwebane’s investigation into Ramaphosa, following complaints laid by the DA’s Mmusi Maimane and the EFF’s Floyd Shivambu.

So… what’s the problem, then?

There are two points of potential concern remaining. One is the amount of money raised by the Ramaphosa presidential campaign.

The total amount is still disputed. The public protector has claimed it was north of R400m; Ramaphosa’s campaign officials told Mkhwebane it was just above R200m.

Ramaphosa’s spokesperson Diko told Daily Maverick:

The campaign indicated it was significantly less than the R400m the public protector alleged.”

However you slice it, nobody is disputing that hundreds of millions of rand were raised, and spent, on Cyril Ramaphosa’s presidential bid.

Although it is entirely possible that Ramaphosa’s rival Nkosazana Dlamini Zuma spent a similar amount, it is still a vast amount of money. People are asking: what was it spent on?

This question is particularly pertinent given that it is known that the presidential race came down to the wire at Nasrec, with the 11th-hour decision of now-deputy president DD Mabuza and his delegates to support Ramaphosa making the crucial difference.

It is also pertinent because allegations of vote-buying have swirled around ANC conferences in the past. Could some of those hundreds of millions raised by the Ramaphosa campaign have been used to buy votes?

According to Diko, the money went on the following:

Campaign rallies across the country, meeting venues, food, transport and accommodation for volunteers, advertising and communications agencies, airtime for volunteers, fundraising costs, project office costs, salaries and stipends for the campaign team etc. This was over a two-year period”.

There is currently no evidence to suggest that Ramaphosa’s team bought votes, though of course, the absence of evidence is not evidence of absence.

Considering the fierceness of the current fightback against the Ramaphosa administration, however, one would think that the practice might have been exposed by now by one of the president’s enemies.

What’s the second concern?

The second concern is that it seems possible that President Cyril Ramaphosa and his staff may have lied under oath in his submission to the public protector regarding the mechanics of his campaign funding.

Both Ramaphosa and his staff members repeatedly stressed to Mkhwebane that a decision was taken to keep Ramaphosa at a distance from the fundraising process for his campaign.

To quote Mkhwebane:

They had decided that he would not be provided with the identity of donors or the amounts pledged, [so] he did not feel under obligation to them in any shape or form at any time in the future.”

In Ramaphosa’s own submission to the public protector, he stated:

I was unaware of the identity of donors to the CR17 campaign.”

Later, Ramaphosa’s submission again states:

The President moreover took the precaution to agree with CR17 that they would not tell him of any of the donations they received from anybody. It was probably not necessary for them to go that far but it was a wise precaution. It precluded any suggestion that the president’s goodwill can be bought.”

This was a principled stance, if technically unnecessary – given that there would have been legally nothing wrong with Ramaphosa’s involvement.

The problem is that it appears to be contradicted by the #CR17 emails.

In one email from Donne Nicol to Ramaphosa, for instance, Nicol requests that Ramaphosa calls Macsteel founder Eric Samson to “thank him for the money and ask for another R10m”.

In this instance, at least, Ramaphosa would clearly have been aware that Samson had already donated money to the campaign. This is in conflict with the repeated claims made to the public protector that Ramaphosa was deliberately left ignorant about the identity of his donors.

The implications of this are pretty serious.

Section 11 of the Public Protector Act states that any person who gives the public protector “an answer which to his or her knowledge is false”, shall be “guilty of an offence”.

Such an offence is punishable by a fine not exceeding R40,000, imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment.

Muddying the waters is the fact that further evidence which could exonerate or implicate Ramaphosa appears not to exist — because Ramaphosa’s campaign team told the public protector that “a decision had also been taken by them not to do anything in writing, therefore no records or documentation such as project plan, minutes of meeting were kept of the CR17 campaign”.

That is either convenient or deeply unhelpful, depending on your perspective.

But the idea that Ramaphosa definitely lied under oath to the public protector is also not clear cut.

Constitutional law expert and Daily Maverick contributor Pierre de Vos, for instance, is not convinced that such a claim would pass legal scrutiny.

It is not that clear that the emails show that Ramaphosa lied to the public protector,” De Vos told Daily Maverick.

He told the public protector that it was agreed that he would ‘not be involved in fundraising’ and that he ‘would not be provided with the identity of donors and funds pledged’. Do the emails show that he was involved in fundraising? At best this is ambiguous, as he was asked about whether some people should be approached for fundraising, but did not himself raise funds as far as we can tell from the emails.”

What the emails primarily show, De Vos suggests, is that Ramaphosa “was approached to ask about the wisdom of asking for money from potential donors”, rather than being provided with detailed information on who donated what.

Obviously this parsing of words looks sleazy and is politically damaging, but that is not the legal standard,” says De Vos. “For criminal prosecution you need actual proof.”

Daily Maverick turned to presidential spokesperson Diko in a final attempt to clarify matters. We asked:

Is it still the Presidency’s position that President Ramaphosa was kept entirely separate from fundraising, and donor identity, for the #CR17 campaign?”

Diko responded:

The Presidency stands by statements made that:

1. President Ramaphosa was not aware of the donation made by Gavin Watson to his campaign.

2. This donation was one of more than 120 donations which were raised from a broad cross-section of South African society, sometimes with the help of supportive individuals who had access to various networks. The donations were made on a confidential basis.

3. The campaign managers had taken as a principle that President Ramaphosa would not be involved in the direct solicitation of donations and the general practice was that details of donors and amounts contributed should not be shared with him.

4. As the candidate, President Ramaphosa did attend several fundraising dinners, where he outlined his vision for the ANC and the country. The campaign team generally consulted him on the invitation lists for these dinners and he was on a few occasions asked for guidance on possible donors or intervention where the campaign managers needed assistance with fundraising.

5. Neither the President nor the campaign has done anything wrong, ethically or legally. It is a common and accepted practice in South Africa and across the world for parties and candidates to raise funding from donors for campaigns.

6. From the outset, the CR17 campaign team and the candidate agreed that this should be a clean campaign that operated within the necessary legal prescripts and in line with the values and principles of the ANC.” DM

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