CCT No. 62/2020 In the matter between:
THE PUBLIC PROTECTOR First Applicant
THE ECONOMIC FREEDOM FIGHTERS Second Applicant
AMABHUNGANE Third Applicant
And
THE PRESIDENT OF RSA First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
THE NDPP Third Respondent
THE NATIONAL COMMISSIONER OF POLICE Fourth Respondent
THE FINANCIAL INTELLIGENCE CENTRE Fifth Respondent
THE PRESIDENT’S SUBMISSIONS IN THE MAIN APPLICATION
TABLE OF CONTENTS
INTRODUCTION...3
THE COMMON CAUSE FACTS...5
The President’s statement...5
The complaints to the Public Protector...9
The Public Protector’s findings... 10
MISLEADING PARLIAMENT...12
The finding... 12
She misread paragraph 2.3(a) of the Code...13
The President did not mislead Parliament...14
The limited appeal...17
NO JURISDICTION TO INVESTIGATE THE CR17 CAMPAIGN...18
NO OBLIGATION TO DISCLOSE...24
MONEY LAUNDERING... 25
AUDI ALTERAM PARTEM...31
REMEDIAL ORDERS UNLAWFUL...34
THE EFF APPEAL... 34
A new case... 34
Section 96(2)(b) of the Constitution...37
ANC’s “hegemony”...38
Conclusion... 40
COSTS AND PRAYERS...40
INTRODUCTION
1 These submissions are made on behalf of the President in the applications for leave to appeal by the Public Protector and the EFF.
2 The issues before the Court are decidedly narrow: it must decide whether the High Court was correct in upholding the President's review of the Report of the Public Protector. Primarily, this issue turns on the facts. The Public Protector's application for leave to appeal is without any merit. The fact is that she was unable to defend the procedure she followed in her investigation and report. She investigated issues which were outside her powers; she failed to afford the President a hearing before taking remedial action; and she committed crass errors of fact and law.
3 These egregious errors include her inexcusable misreading of the Executive Ethics Code ("the Executive Code"); her misunderstanding of the provisions of applicable legislation; and her irrational findings of fact.
4 The EFF's application for leave to appeal should similarly be dismissed. The remarkable feature of the EFF's argument is its complete failure to engage with the close reasoning of the High Court judgment. Its primary contention in the High Court was that the Executive Code should not be construed through the lens of the law, but through the lens of "ethics", a proposition which was rightly rejected by the High Court. Here, the EFF contends that the President had a duty to know everything relevant to a risk of a conflict of interest. It is this failure to know everything that is at the heart of the EFF's argument in this Court. The argument is plainly preposterous. No wonder it has not been embraced by the Public
Protector. The simple point is that the conduct of the President had to be measured against the standard set by the Executive Code. If, on a proper construction of the Executive Code, he was under no duty to disclose, that would be the end of the matter.
5 In Gordhan1, this Court made it clear that leave to appeal is not a free for all: to qualify for leave to appeal a matter must "not merely involve the application of an uncontroversial legal test to the facts". The application of an established legal test does not raise an arguable point of law.
6 The High Court explained what was before it: "It is … important … to remain focused on what this case is about. It is about the Public Protector's report and the competency of the findings she made. It is about the particular facts that served before her, and how she applied the relevant legal principles to those facts." The Public Protector and the EFF do not say that this characterisation by the High Court was wrong. We submit that there is no basis to grant leave to appeal to revisit the application of uncontroversial and trite principles of law to the facts of this case.
7 We first address the Public Protector's application, and then the EFF's application to the extent that it relies on different grounds. However, before doing so, we set out the common cause facts. We conclude our submissions with the relief sought by the President and costs orders.
1 Economic Freedom Fighters v Gordhan and others and a related matter 2020 (8) BCLR 916 (CC).
THE COMMON CAUSE FACTS The President’s statement
8 On 6 November 2018, the President answered questions in the National Assembly. He answered a question of Mr Maimane, the leader of the opposition, about VBS Bank. Under the rules of debate of the National Assembly, Mr Maimane was only allowed to ask a follow-up question related to the main, original question, and arising from the President’s answer. He broke the rules, however, and asked a wholly unrelated question about a payment Mr Gavin Watson had made to the President’s son, Andile Ramaphosa:
“Mr President, here I hold a proof of payment that was transferred to say that R500 000 had to be transferred to a trust account called EFG2 on 18 October 2017. This was allegedly put for your son, Andile Ramaphosa. (Interjections). Following on that, I have a sworn affidavit from Peet Venter, stating that he was asked by the chief executive officer of Bosasa to make this transfer for Andile Ramaphosa.
Mr President, we can’t have family members benefiting.
(Interjections). I would want to ask you, right here today, that you bring our nation into confidence and please set the record straight on this matter. Thank you very much. (Applause)”2
9 Mr Maimane told the President that this payment had been made to his son, Andile. He assured the President that he had first hand evidence on oath that Mr Venter had made the payment to Andile. The thrust of Mr Maimane’s question was to ask the President to explain the payment to Andile.
10 The President responded as follows:
2 President’s FA para 15 Vol 1 p 12; Hansard 6 November 2018 Vol 2 pp 181-2
“Speaker and the hon Maimane, this matter was brought to my attention.
It was brought to my attention some time ago. I proceeded to ask my son what this was all about. He runs a financial consultancy business, and he consults for a number of companies, and one of those companies is Bosasa ... (Interjections) ... where he provides services on entrepreneurship, particularly on the procurement process. He advises both local and international companies.
Regarding this payment, I can assure you, Mr Maimane, that I asked him at close range whether this was money obtained illegally, unlawfully and he said this was a service that was provided. To this end, he actually even showed me a contract that he signed with Bosasa. (Interjections) The contract also deals with issues of integrity, issues of anticorruption, and all that...”
“He is running a clear and honest business as an advisory service, as he has been trained as a consultant with his business science qualification. I have had no idea or inkling whatsoever at what he has informed me, that this money was obtained illegally. If it turns out Mr Maimane, I can assure you if it turns out that there is any illegality and corruption in the way that he has dealt with this matter, I will be the first, the absolute first, to make sure that he becomes accountable ... (Interjections) ... even if it means ...
(Applause) .. . I can assure you, even if it means that I am the one to take him to the police station. That I will be able to do. (Interjections)”
11 The High Court held:
“The factual premise of Mr Maimane’s question was that he (Mr Maimane) had proof that Mr Watson, the CEO of AGO, had caused a payment of R500,000.00 to be made to the President’s son. This was the statement of fact that was put to the President. He was then asked to set the record straight as “we can’t have family members benefitting”. It is so that Mr Maimane mentioned the account name and the date of the transfer in question. However, it is also clear that his real concern was that the
President’s son had secured an improper benefit. Mr Maimane asked the President to explain the payment to his son.”3
12 It was thus Mr Maimane, and not the President, who told parliament that the payment had been made to Andile. Given this premise, the President’s answer was entirely true. The error was made by Mr Maimane, not the President.
13 However, shortly after this exchange with Mr Maimane, Ms Nicol, a member of the CR17 fundraising team and his Special Adviser at the time, told the President that the account EFG2, into which the R500 000 had been paid, was in fact not Andile’s account but a trust bank account held by attorneys Edelstein Farber and Grobler for the CR17 campaign.4
14 In the light of the information from Ms Nicol, the President wrote to the Speaker on 14 November 2018 to set the record straight:
“I wish to draw your attention to the fact that during my appearance in the National Assembly when I was answering questions on 6 November 2018, I inadvertently provided incorrect information in reply to a supplementary question.
Following my response to Question 19 on VBS Mutual Bank, the Leader of the Opposition asked me about a payment that had been made on behalf of a Mr Gavin Watson to my son, Mr Andile Ramaphosa.
My reply to the question was based on the information that was at my disposal at the time, regarding a business relationship that my son's company has with the company Africa Global Operations.
3 Judgment para 57
4 Vol 1 p 13 President’s FA para 20
It is true that my son's company does indeed have a contract with Africa Global Operations for the provision of consultancy services.
The said consultancy services are provided by my son's company to Africa Global Operations in a number of African countries other than South Africa. He informed me that South Africa was specifically excluded to avoid a potential conflict of interest.
Since my reply in the National Assembly, I have sought to get more information regarding this matter.
I have been subsequently informed that the payment referred to in the supplementary question by the Leader of the Opposition does not relate to that contract.
I have been told that the payment to which the Leader of the Opposition referred was made on behalf of Mr Gavin Watson into a trust account that was used to raise funds for a campaign established to support my candidature for the Presidency of the African National Congress.
The donation was made without my knowledge. I was not aware of the existence of the donation at the time that I answered the question in the National Assembly.”5
15 The Presidency and the CR17 campaign both issued similar public statements.6 The complaints to the Public Protector
16 It was at this stage – after the second, voluntary clarification by the President – that Mr Maimane filed a complaint with the Public Protector. On 26 November 2018 Mr Maimane filed a complaint with the Public Protector. He said:
5 President’s FA para 21 Vol 1 p 13-4; letter 14 November 2018 Vol 2 pp 187-8.
6 President’s FA paras 23 and 24 Vol 1 p 14; Presidency statement 16 November 2018 Vol 2 p 189; CR17 statement 17 November 2018 Vol 2 pp 190-1.
“On 6 November 2018, during a question session in the National Assembly, I presented President Ramaphosa with the documentary proof of the payment and the sworn statement that alleges the money was intended for his son Andile. The President confirmed that he was aware of the payment but had been satisfied that it was a lawful payment for services rendered by a consultancy firm owned or operated by Andile Ramaphosa. …
Subsequently, and on or about 16 November 2018, the President sent a letter to the Speaker of the National Assembly purporting to “correct”
the answer he gave in the National Assembly ten days earlier. … In this letter of correction, the President reveals that the payment was actually a donation toward his campaign to be elected ANC President in December 2017.
It is my concern that the set of facts related above reveal that there is possibly an improper relationship existing between the President and his family on the one side, and the company African Global Operations (formerly Bosasa) on the other side. The nature of the payment, passing through several intermediaries, does not accord with a straightforward donation and raises the suspicion of money laundering. The alleged donor is further widely reported to have received billions of Rands in state tenders, often in irregular fashion.
It is further my concern that the President may have lied to the National Assembly in his reply to my question on 6 November 2018.
…”
17 Mr Maimane raised two pertinent issues in relation to the President, namely: (a)
“it is my concern that the set of facts related above reveal that there is possibly an improper relationship existing between the President and his family on the one side, and the company African Global Operations (formerly Bosasa) on the other
side”, and (b) “it is further my concern that the President may have lied to the National Assembly in his reply to my question on 6 November 2018.”
18 Mr Floyd Shivambu, the Chief Whip of the EFF also lodged a complaint with the Public Protector on 26 January 2019. He said:
“I therefore lodge a formal complaint for the Public Protector to investigate:
1. Whether the statement made by President Ramaphosa in the NA on the 6th November 2018 that he saw a contract between his son’s company and African Global Operations is true, and that a contract indeed does exist.
2. Whether President Ramaphosa deliberately misled Parliament in violation of the Executive Ethics Code.” 7
The Public Protector’s findings
19 After an investigation, which had now wholly shifted to focus on the funds received by the CR17 campaign generally, rather than the complaints of Mr Maimane and Mr Shivambu, the Public Protector made the following findings:
“Consequently, President Ramaphosa’s reply was in breach of the provisions of paragraph 2.3(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the Legislature. He deliberately misled Parliament, in that he should have allowed himself sufficient time to research on a well-informed response.
I therefore find President Ramaphosa’s conduct as referred to above although ostensibly in good faith, to be inconsistent with his office as
7 Report Vol 1 p 81b
member of the Cabinet and therefore in violation of section 96(1) of the Constitution, as referred to above.”8
“In light of the evidence before me, it can be safely concluded that the campaign pledges towards the CR17 campaign were some form of sponsorship, and that they were direct financial sponsorship or assistance from non-party sources other than a family member or permanent companion, and were therefore benefits of a material nature to President Ramaphosa.
President Ramaphosa as a presidential candidate for the ANC political party, received campaign contributions which benefited him in his personal capacity. He was therefore duty bound to declare such financial benefit accruing to him from the campaign pledges. Failure to disclose the said material benefits, including a donation from AGO, constitutes a breach of the Code.”9
“The allegation that there is an improper relationship between President Ramaphosa and his family on the one side, and the company African Global Operations on the other side, due to the nature of the R500 000,00 payment passing through several intermediaries, instead of a straight donation towards the CR17 campaign, thus raising suspicion of money laundering, has merit.
I have taken into account the facts as well as prima facie evidence before me, I am therefore of the view that there is merit to the allegation relating to the suspicion of money laundering as alluded to in the complaint lodged with my office.”10
8 Report paras 7.1.3 and 7.1.4 Vol 2 p 171
9 Report paras 7.2.2 and 7.2.3 Vol 2 p 172.
10 Report paras 7.3.1 and 7.3.2 Vol 2 p173.
MISLEADING PARLIAMENT The finding
20 On the question whether the President deliberately misled Parliament on 6 November 2018,11 the Public Protector found as follows:
“President Ramaphosa's reply [in Parliament] was in breach of provisions of paragraph 2.3(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the Legislature. He deliberately misled Parliament, in that he should have allowed himself sufficient time to research on a well-informed response.
”12
“I therefore find President Ramaphosa's conduct as referred to above, although ostensibly in good faith, to be inconsistent with his office as a member of Cabinet and therefore in violation of section 96(1) of the Constitution, as referred to above.”13
She misread paragraph 2.3(a) of the Code
21 The crass error of fact and law committed by the Public Protector is that she misread paragraph 2.3(a) of the Executive Code. This was rightly pointed out by the High Court which held:
“… the Public Protector was confused about the legal foundation to her finding. It is common cause that the finding was based on the Executive Code. The relevant paragraph of this Code is 2(3)(a). It prescribes that:
11 Report para 7.1 Vol 2 p 171.
12 Report para 7.1.3 Vol 2 p 171. See also Report para 5.1.34. Vol 2 pp 122-3 where the Public Protector concludes that “Consequently, President Ramaphosa's reply was in breach of the provisions of paragraph 2.3(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the Legislature. He inadvertently and/or deliberately misled Parliament, in that he should have allowed himself sufficient time to consider the question and make a well informed response.”
13 Report para 7.1.4 Vol 2 p 172.
“Members of the Executive may not … wilfully mislead the legislature to which they are accountable.”14
For some inexplicable reason the Public Protector reframed the paragraph and the test. In paragraph 5.1.28 of her report, she purports to quote from paragraph 2.3.(a) when she says the following:
“… regard must be had to section 2.3 of the Code which states that: Members may not – ‘Deliberately or inadvertently mislead the President, or the Premier, or, as in this case, the Legislature”
(emphasis added).””15
…
“In this regard, the Public Protector’s finding on the misleading of Parliament issue is fatally flawed due to a material error of law. For this reason alone, the finding warrants review and setting aside.”16
22 The Public Protector avoids this issue in her application for leave to appeal.
Instead, she simply elides her own finding that the President inadvertently and/or deliberately misled Parliament.
The President did not mislead Parliament
23 The Public Protector argues here that she found that the President had deliberately misled Parliament. This is not so. She found that the President’s conduct was either deliberate or inadvertent. She did not find that it was deliberate.
24 It is difficult to work out from her Report what the exact basis for the finding of deliberate misleading of Parliament is. The only clue in the Report is the finding
14 Judgment para 47
15 Judgment para 48
16 Judgment para 55
that he acted deliberately because: “he should have allowed himself sufficient time to research on a well-informed response”.
25 This reasoning does not establish any intentional conduct on the part of the President. Hence the High Court held:
“As best as we can understand, the Public Protector appears to have found that the President misled Parliament (either deliberately and inadvertently, or inadvertently) by answering Mr Maimane’s question on the spot, and not allowing himself time to go away and consider the question so that he could make a well informed response…
At best, this conclusion seems to point to carelessness on the President’s part, or, with the benefit of hindsight, an ill-judged decision to answer Mr Maimane’s question then and there. However, by no stretch of law, logic or even ethics, could conduct of this nature be said to amount to a wilful, or deliberate misleading of Parliament such as to amount to a violation of paragraph 2.3(a) of the Executive Code…
In this context, it is difficult to understand how the President’s answer could rationally be viewed as anything but honest and reasonable, given the nature of Mr Maimane’s question. There was no evidence before the Public Protector to gainsay the President’s version, which was backed up by the evidence of Mr Motlatsi, Mr Chauke and Ms Nicol. He said that he had spoken to his son about his connection with AGO in the previous months and that this was why he had assumed that the payment Mr Maimane mentioned in his question, as having been made to his son, was a payment for services his son had rendered to AGO in terms of his agreement with it. There is also nothing to gainsay the President’s version that he focused on the gist of Mr Maimane’s question, and not on the date of the payment (which was in fact before Andile’s agreement with AGO came about) or the account details. Indeed, it is clear that these details were not the thrust of Mr Maimane’s concern at all.”
26 The High Court concluded on this score:
“For these reasons, we find that not only did the Public Protector commit a material misdirection in her legal approach to the misleading of Parliament issue, but she also reached an irrational and unlawful conclusion on the facts that were before her. Further, she did not approach the issue with an open mind. The President’s review of her finding in this regard therefore must be upheld and the finding set aside.”
17
27 In her application for leave to appeal, the Public Protector sets out what she considers to be material factual background from paragraphs 12 to 32.18 She summarises the High Court findings from paragraphs 33 to 40.19 She sets out what she submits are constitutional issues raised in paragraphs 41 and 42;20 and her grounds on which she alleges the High Court erred in paragraphs 43 to 77.21 She makes no attempt to deal with any particular factual or legal finding by the High Court.
28 The Public Protector has taken no issue with the findings of the High Court.
Instead she misrepresents her finding by stating that “I found that, the allegation that on 6 November 2018 during questions session in Parliament, the President deliberately misled the National Assembly was substantiated …”22 (our emphasis). This is a blatant attempt to mislead this Court.
17 Judgment para 75
18 Vol 14 pp 1448 - 1475
19 Vol 14 pp 1475 - 1489
20 Vol 14 pp 1489 - 1492
21 Vol 14 pp 1492 - 1501
22 Vol 14 p 1463 PP’s FA para 26
29 In respect of the bad faith finding the Public Protector avers - without more - that
“reliance by the court a quo that I found that the President was ostensibly acting in good faith to justify its reasoning that I accepted that the President acted in good faith simply misconstrues the issue.”23 She repeats the High Court’s finding that she did not approach the issue with an open mind,24 but fails to explain why it is wrong.
30 It is submitted that the High Court’s reasoning is correct. The outcome should not be disturbed.
The limited appeal
31 It appears that the Public Protector’s appeal is on a very limited basis. In her heads of argument, the Public Protector identifies the only issues that the Court should decide as “whether the Public Protector’s finding that the President of the Republic of South Africa, His Excellency Mr Cyril Matamela Ramaphosa (“the President”) misled Parliament was irrational.”25 Although she seems to accept the flaws in the Report,26 she argues that it is not reviewable because the High Court should only have conducted “a qualitative assessment of a decision to determine whether it is one that a decision-maker could reasonably make.”27
32 The legal basis for the argument is apparently paragraph 44 of this Court’s judgment in Bato Star. But that paragraph is wholly inapposite. Its opening line
23 Vol 14 p 1493 PP’s FA para 48
24 PP’s HoA para 33.13
25 PP’s HoA para 3.1
26 PP’s HoA para 37
27 PP’s HoA para 35, relying on Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) at [44] (Bato Star).
shows why: “There was some debate in the supplementary heads filed by the parties as to the precise meaning of section 6(2)(h) of PAJA which provides that if a decision “is so unreasonable that no reasonable person could have so exercised the power”, it will be reviewable.” Bato Star was thus concerned with the reasonableness standard in section 6(2)(h) of PAJA, rather than section 1(c) of the Constitution.
33 The Public Protector argues that the complaint is that the President initially gave a “confident” answer to Parliament. But “some 8 days later, revised his certainty and communicated a different version which was still inconsistent with the facts.
To sanitize this inconsistency and misleading statement by the President is simply unjustified.”28
34 These statements are plainly wrong. The issue was whether the Public Protector committed an error of law and fact when she concluded that the President deliberately and/or inadvertently misled Parliament and thus contravened the Code. If her recast finding is accepted, she found the President’s actions intentional simply because he failed to give himself enough time to reflect on the answer. Her argument fails to identify any rational basis for the conclusion that the President deliberately misled Parliament.
35 We therefore submit that, to the extent that the Public Protector disputes the High Court’s findings that (a) she committed a material misdirection in her legal approach, and (b) that she did not approach the issue with an open mind, she has failed to set out the grounds upon which the decision appealed against is disputed.
28 PP’s HOA para 39.
36 It is accordingly not in the interests of justice for the court to entertain the appeal as the High Court’s order remains unassailable on the grounds that are not disputed.29
NO JURISDICTION TO INVESTIGATE THE CR17 CAMPAIGN
37 The High Court held that the Public Protector had no jurisdiction to investigate the CR17 campaign funding. Its finding was fact specific - “… we conclude on the facts of this case …”. The High Court did not make new law and simply applied existing principles to the facts to conclude that the Public Protector did not have jurisdiction to investigate the CR17 campaign donations.
38 The High Court did not find that the Public Protector lacks jurisdiction to investigate the conduct of the President or the Deputy President. The issue was whether the Public Protector was entitled to investigate the CR17 campaign donations made to an intra party political campaign.
39 We commence by restating what the Public Protector identified for investigation in her report.
39.1 First was the issue of misleading of Parliament which we have dealt with above.
39.2 Second was whether the President exposed himself to any situation involving the risk of a conflict between his official duties and his private interest or used his position to enrich himself and his son through businesses owned by African Global Operations.
29 Concerned Land Claimants' Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association and Others 2007 (2) SA 531 (CC); 2007 (2) BCLR 111 (CC) paras 21 to 26
39.3 Finally, it was whether there was an improper relationship between the President and his family, and African Global Operations due to the nature of the R500 000.00 payment passing through several intermediaries instead of a straight forward donation to the CR17 Campaign “thus raising the suspicion of money laundering”.
40 The Public Protector said that the genesis of these questions was the complaints that she had received. But they did not extend to the CR17 campaign funding.
41 The Maimane complaint focusses on the deposit of R500 000.00 into the account EFG2. Mr Maimane alleged that the amount was paid from the personal account of Gavin Watson, the Chief Executive Officer of AGO into the account of Miotto Trading a company associated with AGO. From this account it was paid into EFG2 “said to be a trust or foundation of the son of President Cyril Ramaphosa’s son, Andile Ramaphosa.”. Mr Maimane also complained about the answer given in Parliament by the President. Mr Maimane added: “The nature of the payment, passing through several intermediaries, does not accord with the straight forward donations and raises the suspicion of money laundering. The alleged donor is further widely reported to have received billions of Rands in State tenders, often in irregular fashion.”
42 The Shivambu complaint asked the Public Protector to investigate:
“Whether the statement made by President Ramaphosa in the National Assembly on the 6th November 2018 that he saw a contract between his son’s company and African Global Operations is true, and that a contract indeed does exist.
Whether President Ramaphosa deliberately misled Parliament in violation of the Executive Ethics Code.”.
43 Section 182(1) of the Constitution restricts the investigation of the Public Protector to “state affairs”, or “the public administration”. Similarly, sections 6(4) and 6(5) of the Public Protector Act 23 of 1994 limit the jurisdiction of the Public Protector to matters involving “the State”, or “public administration”, or “public affairs”.
44 In terms of section 182(1) of the Constitution, and sections 6(4) and 6(5) of the Public Protector Act, the Public Protector had no jurisdiction to investigate donations made to intra party campaigns such as the CR17 campaign .Those donations do not implicate the State, public administration or public affairs in any manner whatsoever. They are donations made to a private political party campaign.
45 The ANC is a voluntary association. The relationship between the party and its members is private and contractual: “the relationship between a political party and its members is a contractual one, the terms of the contract being contained in the constitution of the party.”30 It is so that some of the funds did not emanate from members of the party, but from other private sources. The point is that the funds received by CR17 were intended for and used by members of the party in the course of internal party activities.
46 The Constitution does not spell out how members of a political party should participate in its activities. This is left to the constitution of each political party.
“For good reason this is left to political parties themselves to regulate. These
30 Matlholwa v Mahuma and Others (207/08) [2009] ZASCA 29; [2009] 3 All SA 238 (SCA) at para 8
activities are internal matters of each political party. Therefore, it is these parties which are best placed to determine how members would participate in internal activities.”31 The nature of a political party is that of a voluntary association: “at common law a voluntary association like the ANC is taken to have been created by agreement as it is not a body established by statute.”32
47 The Public Protector purported to investigate donations made to the CR17 campaign on the strength of the Executive Code.
48 In terms of sections 3 and 4 of the Executive Members' Ethics Act 82 of 1998 (“Ethics Act”), the Public Protector only has jurisdiction to investigate breaches of the Executive Code or the Ethics Act upon the receipt of a complaint as defined.
A complaint must meet the requirements of section 4 of the Ethics Act in order to trigger the investigatory powers of the Public Protector.
49 The two complaints of Mr Maimane and Mr Shivambu do not make any reference whatsoever to donations generally made to the CR17 campaign.
49.1 Both complaints are limited in scope to the amount of R500 000.00 which was allegedly paid by Mr Watson.
49.2 Both complaints refer to the allegation about misleading the National Assembly.
49.3 Neither complaint refers to the donations made to the CR17 campaign.
31 Ramakatsa and Others v Magashule and Others (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para 73.
32 Ramakatsa at para 79.
50 Mr Maimane’s reference to “money laundering” is based on the allegation that the R500 000.00 payment from Mr Watson went through “several intermediaries”
before it came to the CR17 campaign account. It does not refer to donations to the CR17 campaign at all. There was no basis to investigate the campaign at all.
It must be recalled that the Public Protector did investigate the allegation of money-laundering. But in addition, and without any complaint, she on her own investigated the CR17 campaign.
51 The Public Protector cites the judgment of the Public Protector v Mail & Guardian Ltd & Others33 as apparent justification for the extension of her investigation. That judgment is inapposite. Paragraph 9 merely finds that the Public Protector may act upon complaints that are made and “may also take the initiative to commence an enquiry, and on no more than 'information that has come to his or her knowledge' of maladministration, malfeasance or impropriety in public life.” This paragraph, however, specifically refers to the Public Protector Act. It does not refer to the Ethics Act. The Mail & Guardian case in any event is concerned with matters that are in the heartland of the functions of the Public Protector, namely maladministration in the public sector.
52 Sections 6(4) and 6(5) of the Public Protector Act are a clear statutory mandate that the Public Protector may initiate investigations on her own accord in relation to matters within public administration. But, the Public Protector confuses her powers under the Public Protector Act and the Ethics Act. Unlike the Public Protector Act, the Ethics Act restricts the authority of the Public Protector to complaints lodged under the Executive Code. Absent a complaint, she has no
33 2011 (4) SA 420 (SCA).
jurisdiction to investigate any matter concerning the alleged violation of the Executive Code.
53 In the circumstances, the Public Protector had no jurisdiction to investigate the CR 17 campaign funding.
NO OBLIGATION TO DISCLOSE
54 On the merits of the disclosure issue the High Court held:
“We stated above that on the facts before the Public Protector, there was nothing to substantiate the conclusion that the President was obliged to disclose donations made to the CR17 campaign under paragraph 6.2 of the Code. This is because there was no evidence that he received direct financial sponsorship from the donations though the CR17 campaign. The only other possible basis for the duty to disclose is under paragraph 6.4, i.e. that he received another disclosable benefit of a material nature. To sustain the Public Protector’s finding on this basis, as supported by the EFF, paragraph 6.4 would have to be interpreted to include an indirect benefit. If it is interpreted to mean a direct benefit, then the Public Protector’s finding would be unsustainable for the same reason that her conclusion that the President received a disclosable sponsorship was unsustainable.”34 55 The High Court then went on to conclude that “the findings of the Public Protector
on the disclosure issue are unsustainable. Rational findings must be premised on proper factual and legal foundation. That foundation was lacking in this case. The Public Protector’s conclusion that the President breached the Executive Code by failing to disclose donations to the CR17 campaign was irrational and unlawful and falls to be set aside.”35
34 Judgment para 126
35 Judgment para 132
56 The Public Protector does not challenge the High Court’s finding on the merits of the disclosure of the CR17 campaign donations issue in her application for leave to appeal. In her heads of argument, one of the listed issues is “whether the President was obliged to disclose such benefit/s to the National Assembly.”36 In paragraph 62 of her heads, she sets out a long list of grounds on which the High Court ultimately found against her on this issue, but makes no attempt to controvert them. Instead, she continues to defend her assumed jurisdiction after paragraph 62 of her heads. It accordingly seems clear that no real challenge is directed at the finding regarding the duty of disclosure.
57 Insofar as the issue remains alive, despite the Public Protector’s failure to advance any argument on the matter, we refer to our submissions in amaBhungane’s application where we address the issue.
MONEY LAUNDERING
58 There was no basis for the Public Protector’s finding that the “suspicion” of money-laundering was substantiated. She found that Mr Gavin Watson’s transfer of R500 000 to CR17 “through several intermediaries” gave rise to a suspicion of money laundering.37 But there was not a shred of evidence of money laundering by the President.
59 We emphasize that the Public Protector’s finding was based on, and only on, Mr Watson’s donation to CR17.
36 PP’s HoA para 3.2.3
37 Vol 2 p 173 Report paras 7.3.1 and 7.3.2.
60 The Public Protector reviewed the evidence on this score from page 134 in paragraph 5.3 of her Report. She considered the evidence of,
- Mr James Motlatsi, one of the CR17 campaign managers;38
- Mr Benjani Chauke, the national manager of the CR17 campaign;39 - Ms Donne Nicol, a member of the CR17 fundraising committee;40 - Mr Andile Ramaphosa, the President’s son;41
- Mr Petrus Venter, AGO’s tax consultant;42 - Mr Gavin Watson, the CEO of AGO;43
- Ms Natasha Olivier, Mr Watson’s professional assistant;44
- Attorneys Edelstein, Farber and Grobler who held the EFG2 trust account for CR17;45 and
- all CR17’s bank accounts.46
61 None of this evidence made any suggestion of money laundering whatsoever.
62 After reciting all the evidence, the Public Protector considered from page 156, in paragraphs 5.3.10.68 to 5.3.10.72, whether it reveals any money laundering. But
38 Vol 2 p 136 Report paras 5.3.10.1 to 5.3.10.10.
39 Vol 2 p 137 Report paras 5.3.10.11 to 5.3.10.16.
40 Vol 2 p 139 Report paras 5.3.10.17 to 5.3.10.27.
41 Vol 2 p 140 Report paras 5.3.10.28 to 5.3.10.33.
42 Vol 2 p 149 Report paras 5.3.10.35 to 5.3.10.43.
43 Vol 2 p 151 Report paras 5.3.10.44 to 5.3.10.49.
44 Vol 2 p 152 Report paras 5.3.10.50 to 5.3.10.51.
45 Vol 2 p 152 Report paras 5.3.10.52 to 5.3.10.59.
46 Vol 2 p 153 Report paras 5.3.10.60 to 6.3.10 67.
she does so under the Corruption Act.47 She cites some of its provisions and says that,
“My investigation into the issue pertaining to possible money laundering is premised on the above legislation dealing with corruption and applies not only to private individuals who offer bribes, but also to private individuals who accept bribes.”48
63 On this basis, the Public Protector concludes that the evidence gives rise to a suspicion of money laundering:
“Based on the facts before me as well as evidence adduced during my investigation, I have come to the conclusion that there is merit to the allegation relating to the suspicion of money laundering as alluded to in the complaint lodged with my office.”49
64 We submit with respect that this analysis is wholly irrational. The Public Protector does not appear to realise that money laundering is an offence under section 4 of POCA.50 The essence of the offence is the concealment of the proceeds of crime. She did not enquire into the question whether any of the CR17 donations constituted the proceeds of crime. She also did not point to any evidence at all in support of her suggestion of money laundering.
65 The Public Protector also ignored the evidence of the Financial Intelligence Centre. Its deponent, Ms Xolisile Khanyile, says that its analysist, Mr Muller, who analysed all the CR17 bank accounts, called a meeting with the Public Protector to ensure that she correctly understood his analysis.51 They met on 10 April 2019.
47 The Prevention and Combatting of Corrupt Activities Act 12 of 2004.
48 Vol 2 p 157 Report para 5.3.10.72.
49 Vol 2 p 157 Report p 157 para 5.3.10.75.
50 The Prevention of Organised Crime Act 121 of 1998.
51 Vol 5 p 600 FIC founding affidavit para 86.
The Public Protector was represented by Mr Mataboge. He specifically asked the FIC representatives whether they had found any evidence of money laundering. Mr Muller informed him that he could find no indication of money laundering as he could not say whether any of the money constituted the proceeds of crime.52 He added that the amount of R500 000 received from Mr Watson “came from sources that appeared to be lawful”.53 There was thus no suggestion of money laundering. The Public Protector’s finding to the contrary was wholly irrational.
66 The High Court’s reasoning on the suspicion of money laundering is set out in paragraphs 133 to 153 of the judgment. It ultimately found that:
“On the money laundering issue, the Public Protector displayed anything but an open mind. She made serious findings based on unfounded assumptions. She paid no regard to the statute that establishes the very offence in which she implied the President is suspected to have been involved. She also ignored the detailed explanations from Ms Nicol, Mr Motlatsi and Mr Chauke about the provenance of each of the accounts involved in the CR17 campaign, and how and why the transfers were effected between them. Had she considered this evidence properly, she could not rationally have concluded that these accounts were being used in such a manner as to warrant a prima facie suspicion of money laundering. We find that her findings on the money laundering issue were not only irrational, but, indeed, reckless. Consequently they fall to be reviewed and set aside.”
54
52 Vol 5 p 601 FIC founding affidavit para 87.
53 Vol 5 p 601 FIC founding affidavit para 88.
54 Judgment para 153
67 The Public Protector seeks leave to appeal against this finding. She summarises the High Court’s findings in paragraphs 37.1 to 37.14 of her founding affidavit.
68 However, she does not identify the respects in which she alleges the High Court erred in its conclusions.
68.1 In paragraph 58 she says “if one looks at the totality of evidence and the large sums of money that passed through the account, it would have been remiss in the extreme of me to turn a blind eye to this simply because the subject is the President.”
68.2 In paragraph 61 the Public Protector asserts that:
“There was therefore nothing irrational in my finding that there is merit to the allegation relating to the suspicion of money laundering and that this feature of the investigation will be dealt with in conjunction with the provisions 6(4)(c)(i) of the Public Protector Act. I did not investigate whether there was in fact money laundering but referred the matter to the relevant authorities to do their work.”55
69 In the Report the Public Protector’s finding is thus:
“I have taken into account of the facts as well as pima facie evidence before me. I am therefore of the view that there is merit to the allegation relating to the suspicion of money laundering as alluded to in the complaint lodged with my office.”56
55 Vol 14 p 1496-7 PP’s FA para 61
56 Vol 2 p 173 Report para 7.3.2
70 On this argument, the Public Protector concluded there was a prima facie case of money laundering merely because “large sums of money” passed through the CR17 campaign accounts. This is absurd.
71 But now, in her written argument, the Public Protector tries to avoid all these difficulties by claiming that she did not investigate money laundering – “the Public Protector did not investigate whether there was in fact money laundering but referred the matter to the relevant authorities to do their work.”57 This is false. The Report states:
“My investigation into the issue pertaining to possible money laundering is premised on the above legislation dealing with corruption and applies not only to private individuals who offer bribes, but also to private individuals who accept bribes.”58(Our emphasis)
72 The Public Protector cannot claim that she did not investigate whether there was in fact money-laundering – even on a prima facie basis. The only way she could have concluded that there was prima facie evidence of money-laundering is if she in fact investigated money laundering. If she did not, as she claims, then it is grossly irresponsible and irrational to come to the conclusion that there is a prima facie case of money-laundering without an investigation into the underlying facts.
73 We submit that there is no reason for this Court to interfere with the High Court’s findings against the Public Protector and review of the Report.
57 PP’s HoA para 90
58 Vol 2 p 157 Report para 5.3.10.72; also quoted in para 136 of the judgment
AUDI ALTERAM PARTEM
74 The Public Protector failed to afford the President an opportunity to address the following matters:
74.1 The first was the information the Public Protector received from the FIC.59 74.2 The second was the CR17 e-mails which had been illegally obtained by
the Public Protector.60
74.3 The third was the remedial orders she made against the President. In his response to the Public Protector’s preliminary report, the President specifically asked for an opportunity to address any proposed remedies.61 The Public Protector, however, failed to afford him such an opportunity.
74.4 We submit that the President was entitled to a hearing, and the Public Protector’s failure to afford him a hearing was unlawful, on the following grounds.
74.5 She was in the first place obliged to afford him a hearing in terms of section 7(9)(a) of the Public Protector Act.
74.6 The section reads as follows:
“If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the
59 Vol 1 p 61-2 FA paras 167 to 172.
60 Vol 4 p 494 SA para 89.
61 Vol 3 p 382 President’s response to PP’s preliminary report para 176.
detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.”
74.7 This duty is triggered whenever it appears to the Public Protector in the course of an investigation,
“that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person”; or
“that an adverse finding pertaining to that person may result”.
74.8 The Public Protector is then obliged to give that person an opportunity to respond “in connection therewith”. It includes an opportunity to make representations to the Public Protector on any adverse order she might make against the implicated person, including an adverse remedial order.
75 Her duty arises in the second place under the common law principle of audi alteram partem. The SCA described this principle in Traub as follows:
“The maxim expresses a principle of natural justice which is part of our law. The classic formulations of the principle state that, when a statue empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken ... unless the statute expressly or by implication indicates the contrary.”62
This Court endorsed this description of the audi principle in Masetlha63 and again in Malan.64
62 Administrator, Transvaal v Traub 1969 (4) SA 731 (AD) 748.
63 Masetlha v President of the RSA 2008 (1) 566 (CC) paras 74 and 75.
64 Malan v City of Cape Town 2014 (6) SA 215 (CC) para 135.
76 The third source of her duty to afford the President a hearing is the rule of law and its requirement of procedural rationality in the exercise of all public power. It includes an opportunity to be heard when a hearing is rationally required. The SCA held that to be so in Minister of Home Affairs.65 This Court recently again affirmed this principle in NERSA.66
77 The Public Protector’s failure to afford the President a hearing on these matters was accordingly unlawful. The High Court agreed and held that, “given these serious implications of the remedial action, the President’s right to just administrative [action] placed an obligation on the Public Protector to be forewarned of them, and to be given an opportunity to make representations.”67 78 Once again, in respect of this ground the Public Protector does no more than
repeat her arguments rejected by the High Court. She does not engage with the High Court’s reasoning at all. Her appeal against the High Court’s finding must accordingly fail.
REMEDIAL ORDERS UNLAWFUL
79 The Public Protector’s remedial orders were not competent. They usurped the powers of the Speaker and the NDPP.68
80 This objection is also raised by the Speaker and the NDPP. It is accordingly not necessary for the President to address them. He aligns himself with their contentions. On this ground too, the Public Protector’s remedial orders are
65 Minister of Home Affairs v Public Protector 2018 (3)( SA 380 (SCA) para 38 footnote 25.
66 NERSA v PG Group 2019 ZACC 28 (15 July 2019) paras 47 to 51, 64 and 114 to 119.
67 Judgment para 162
68 Vol 1 p 62-4 FA paras 173 to 176.
unlawful, and there is no reason why this Court should reverse the findings of the High Court.
THE EFF APPEAL A new case
81 The EFF raises new arguments on appeal, and also seeks to argue a case that differs from that of the Public Protector.
82 Unlike amaBhungane, the EFF did not bring a separate application, nor would one have been competent. Given that this case is about “the Public Protector’s report and the competency of the findings she made. It is about the particular facts that served before her, and how she applied the relevant legal principles to those facts,”69 the EFF is constrained to stay within the confines of the findings in the Report and make its submissions on those findings.
83 However, the EFF fails to do so because the Public Protector’s findings are indefensible on the reasons put forward in her Report. The EFF therefore augments the Public Protector’s case by advancing independent and new justifications for the Public Protector’s findings.
84 The EFF is alive to this problem and seeks to overcome it by relying on this Court’s decision in McBride v Minister of Police.70 This reliance by the EFF is without foundation. Footnote 25 in McBride refers to the decision of this Court in CUSA v Tao Ying Metal Industries71 where this Court held the following:
69 Judgment para 8
70 McBride v Minister of Police and another (Helen Suzman Foundation as amicus curiae) 2016 (11) BCLR 1398 (CC); 2016 (2) SACR 585 (CC) footnote 25
71 CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC)
“Subject to what is stated in the following paragraph, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.
These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the issue of the Commissioner’s jurisdiction and to require argument thereon. However, as will be shown below, on a proper analysis of the record, the arbitration proceedings in fact did not reach the stage where the question of jurisdiction came into play.”
85 The EFF’s reliance on Cole v Government of the Union of South Africa72 is equally misplaced. A point of law may be raised for the first time on appeal if it is covered by the pleadings, and if its consideration on appeal involves no unfairness to the party against whom it is directed. The relevant pleadings here are those between the President and the Public Protector.
72 Cole v Government of the Union of South Africa 1910 AD 263 at 272-3 at paragraph 20 and footnote 27 of the EFF’s HoA
86 That the EFF seeks to argue a new case on appeal is plain from paragraph 28 of its written submissions – “… what the EFF asks this Court to do, flowing from the Court a quo’s failings, is to extend its principle findings in My Vote Counts.” The Public Protector did not seek such far reaching relief before the High Court, and she certainly does not seek that relief before this Court. Therefore, the EFF is clearly on a frolic of its own.
87 We therefore submit that there is no basis for the EFF to raise new issues that do not arise between the President and the Public Protector. Its appeal accordingly falls to be dismissed.
Section 96(2)(b) of the Constitution
88 The EFF relies on section 96(2)(b) of the Constitution for its submissions on the Public Protector’s findings that:
- the President misled Parliament; and
- the President was obliged to declare the CR17 campaign donations as direct material financial benefits.
89 We deal with the difficulties raised by the reliance on section 96(2)(b) as well as the EFF’s reliance on My Vote Counts 273 when we address amaBhungane’s appeal. Those submissions apply equally to the EFF’s reliance on section 96(2) (b). However, it suffices for now to submit that:
89.1 The Public Protector made a finding on the facts before her that the President misled Parliament and therefore breached paragraph 2.3(a) of
73 My Vote Counts NPC v Minister of Justice and Correctional Services and another 2018 (8) BCLR 893 (CC)
the Executive Code. According to the Public Protector the President did so by answering Mr Maimane’s question in the heat of the moment instead of taking time and then providing a properly considered response.
After the President had considered his answer, he subsequently changed.
89.2 The EFF on the other hand advances a different case, which is not pleaded. It starts off by saying that the President is guilty of transgressing paragraph 2.3(a) of the Executive Code because “he himself got the facts wrong”.74 But, this is a non sequitur. For the finding to stand the President must be found to have misled Parliament and to have done so deliberately. The EFF relies on the High Court judgement in Zuma75 for the doctrine of strict liability that it says ought to be applied to the President. But the provisions of the Executive Code are clear – there must be an intentional act on the part of the President. Absent intention, there can be no transgression.
90 The other basis for the EFF’s insistence that the President misled Parliament is that he placed himself in a position of “wilful ignorance”.76 But if the President was ignorant of the facts, he could not deliberately mislead Parliament. There are simply no facts to show that he was intentionally ignorant of the facts. To the contrary, he responded in good faith to the facts Mr Maimane put to him. Mr Maimane, and not the President, was responsible for the mistake of fact.
74 EFF’s HoA para 13.1.1
75 President of the Republic of South Africa v Public Protector and Others 2018 (2) SA 100 (GP) (“Zuma”) para 184
76 EFF’s HoA para 13.1.1
91 The Public Protector’s finding – which is not defended in her written submissions – was that the donations to the CR17 campaign were direct material financial benefits of a financial nature to the President. The High Court rejected these findings. The Public Protector does not defend these findings in this Court.
ANC’s “hegemony”
92 The EFF appears to suggest that the High Court erred in drawing the distinction between the President and the CR17 campaign – “practically, it denies the political reality of the ANC's hegemonic political support as enabled by our system of multi-party democracy. In other words, although the Party and the State are legally separate entities, to suggest that the internal affairs of the former do not impact the affairs of the latter is the height of artifice.”77
93 As we understand the EFF’s logic, if the Court ignores the distinction between the dominant political party (ANC) and the state, the CR17 campaign gets elevated to the type of election campaign that this Court was concerned with in My Vote Counts 2.78 That would then render the President’s conduct to have been in ‘state affairs’ and within the jurisdiction of the Public Protector.
94 This is not the case of the Public Protector. Before the High Court the Public Protector claimed that “state affairs” is a broad concept when viewed through the lens of political theory. This was rejected by the High Court. Her case before this Court is that she never investigated the CR17 campaign, she was merely investigating the President’s conduct.
77 EFF’s HoA para 53
78 My Vote Counts NPC v Minister of Justice and Correctional Services and another 2018 (8) BCLR 893 (CC)
95 But the EFF’s argument is absurd. Taken to its logical conclusion, the principle will only apply to executive members who are members of the political party that enjoys hegemony. If the executives are not members of the hegemonic political party the rule will not apply to them.
96 In any event, that was not the case before the High Court, and the Court should not entertain such a case for the first time on appeal.
Conclusion
97 The rest of the EFF’s submissions are similar to those of the Public Protector. We submit that they should be rejected together with the Public Protector’s submissions on the same grounds.
COSTS AND PRAYERS
98 The High Court ordered the Public Protector to pay the President’s costs on an attorney and client scale. We submit that there is no reason for this Court to interfere with the exercise of the High Court’s discretion in that regard.79
99 For the same reasons that he sought punitive costs against the Public Protector in the High Court, the President asks that the Public Protector be ordered to pay his costs on the attorney and client scale.80 The punitive costs are justified on the following grounds:
79 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) para 224
80 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) paras 221- 223
100 The Public Protector’s investigation was reckless. Her unexplained misreading of paragraph 2.3(a) of the Executive Code was particularly egregious. It smacks of a malicious determination to make adverse findings against the President.
101 The Public Protector’s investigation of all the donations to CR17 was unlawful and in bad faith. She could not conceivably have thought it justified to investigate all of them when the complaints were confined to a single payment. Her unlawful investigation of all the donations was malicious.
102 The Public Protector’s finding of a suspicion of money laundering was entirely baseless. It reinforced the inference of a reckless determination to malign the President.
103 The President also asks for an order for costs against the EFF but not on a punitive scale. The EFF’s application is an abuse of process81 and is manifestly inappropriate.82
104 The President asks for the following orders:
104.1 The Public Protector’s application is dismissed with costs on the attorney and client scale.
104.2 The EFF’s application is dismissed with costs.
104.3 The costs orders include costs of two counsel.
81 Beinash v Wixley 1997 (3) SA 721 (SCA) at 734
82 Biowatch Trust v Registrar Genetic Resources and Others 2009 (10) BCLR 1014 (CC) para 23
Wim Trengove SC
Tembeka Ngcukaitobi SC Ndumiso Luthuli
President’s Counsel Chambers, Sandton 28 August 2020