Batohi: Mkhwebane's Bosasa-order 'infringes constitutional mandate of NPA'

2019-09-13 16:58
Advocate Shamila Batohi and President Cyril Ramaphosa at the announcement of her appointment.

Advocate Shamila Batohi and President Cyril Ramaphosa at the announcement of her appointment. (Felix Dlangamandla)

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Public Protector Busisiwe Mkhwebane's order that the National Prosecuting Authority (NPA) must investigate money laundering in President Cyril Ramaphosa's ANC presidential campaign "impacts on and infringes the constitutional and statutory mandate of the NPA", National Director of Public Prosecutions Shamila Batohi said.

Batohi will file a supporting affidavit to Ramaphosa's review application of Mkhwebane's Bosasa report.

This is contained in a written reply to a parliamentary question by DA MP Glynnis Breytenbach.

Breytenbach asked Justice Minister Ronald Lamola if the NPA "intends to defend its constitutional independence" in the review application against Mkhwebane's report.

Lamola provided a response by Batohi.

Batohi said the Public Protector's report ordered the NDPP to conduct an investigation into "prima facie evidence of money laundering", and to submit an implementation plan for the approval of the Public Protector, within 30 days of publication of the report.

Mkhwebane has since agreed to stay the order, pending the judicial review of the report.

"In the spirit of co-operative governance," Batohi then wrote to Mkwhebane seeking clarity on whether the orders were meant merely to constitute notifying the NDPP of her opinion that the facts disclose the commission of an offence.

Mkhwebane responded by stating that the order is a referral to the NDPP based on her opinion that the facts disclose a commission of an offence and that the order requiring the NDPP to submit a report for her approval is a logical and legal consequence.

"The NDPP understands that response to mean that the Public Protector persists with the orders," Batohi's response reads.

"These orders impact on and infringe the constitutional and statutory mandate of the NPA to investigate and prosecute crime, free of supervision or interference by another party and without fear or favour."

She said the Public Protector's mandate in terms of the Constitution and the Public Protector Act is restricted to notifying the NPA of his or her opinion that the facts disclose the commission of an offence.

Batohi said it is "therefore a constitutional issue that requires the NDPP, in the interests of the independence of the NPA, to file an affidavit supporting the review to set aside the remedial orders against the NDPP".

"The NDPP will file an affidavit after having seen the record of decision and any supplementary affidavits by the applicants."

Batohi emphasised that this is "purely a legal issue" and does not in any way impact on her consideration of the matter in light of the opinion of the Public Protector that the facts disclose the commission of an offence.

In July, Mkhwebane released her report on the recently deceased head of Bosasa Gavin Watson's donation to Ramaphosa's campaign.

She found Ramaphosa had violated the executive code of ethics by not declaring donations to his presidential campaign in 2017.

She also found he had deliberately misled Parliament when he responded to a question about the R500 000 donation from Watson in the National Assembly.

Ramaphosa raised several criticisms of Mkwhebane's report in his application to have it reviewed and set aside.

Meanwhile, this past week Parliament started a process to draft rules for the removal of the head of a Chapter Nine Institution, such as the Public Protector, as there is a request from the DA before Parliament to remove Mkwhebane in the wake of several adverse court findings against her, and the legislator does not have rules for such a procedure are the moment.

Read more on:    public protector  |  shamila batohi  |  busisiwe mkhwebane  |  politics
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