Dishonesty, ethics and matters of fact: Court to decide on Mkhwebane's conduct in Ramaphosa probe

2020-02-06 06:28
Public Protector Busisiwe Mkhwebane. (PHOTO: Raymond Morare)

Public Protector Busisiwe Mkhwebane. (PHOTO: Raymond Morare)

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The battle between Public Protector Busisiwe Mkhwebane and President Cyril Rampahosa took centre stage in the Gauteng High Court in Pretoria this week as months of acrimonious exchanges, which dominated headlines, spilled into open court.

Mkhwebane faced stiff criticism by Ramaphosa's lawyers during two days of arguments before a full bench comprising Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley.

Meanwhile, the Public Protector has stuck to her guns on her report into a R500 000 donation to Ramaphosa's successful ANC presidential campaign by late Bosasa boss Gavin Watson.

CRIB SHEET | Your ultimate guide to the key issues in Ramaphosa vs Mkhwebane court battle

On Wednesday afternoon, after closing arguments, Mlambo reserved judgment with no clear indication as to when a verdict could be expected.

Advocate Tembeka Ngcukaitobi, in his closing remarks, said Mkhwebane got the facts so egregiously wrong that it was impossible that she could have acted rationally.

On Tuesday, Ramaphosa's lawyers presented their case for why they believed Mkhwebane's report should be set aside, with her counsel responding in the afternoon.

On Wednesday, the court heard from the counsel of the EFF, who is supporting Mkhwebane, advocate Vincent Maleka SC, that Ramaphosa had a moral and ethical duty to disclose donations to the CR17 campaign.

Advocate Wim Trengove SC, for Ramaphosa, said it was clear the suspicion of money laundering was limited to the R500 000 Watson donation, and how it arrived at the CR17 campaign.

Kept in the dark

Ramaphosa was perfectly honest and had not misled Parliament, Trengove submitted, saying he had been kept in the dark about the specifics of who had donated and how much they gave.

But the question from former DA leader Mmusi Maimane was not about campaign funding, he said.

"On this particular occasion, the president was not asked about CR17 funding. He was asked about payments to his son, and he gave an honest answer. He didn't actually know about the payment Watson made," Trengove said.

"As to the argument that he ought to have known, we will submit that good corporate governance and ethics are better served by not telling the candidate who donated what."

Ramaphosa has maintained the campaign had been run with him being out of the loop on the specifics of donations.

"The suggestion that the president should have known, and told Parliament, falters on two points. He did not know, and he was not asked about campaign funding," Trengove said.


It was arguably, however, Ngcukaitobi who had the last word.

He supplemented submissions from Tuesday that the Public Protector had not presented any factual explanations as to how she had reached the conclusions in her report.

Ngcukaitobi told the court her counsel too had failed to explain the factual basis during arguments.

Key issues

The key issues of the matter centred around whether or not Mkhwebane had jurisdiction to investigate the CR17 campaign finances, whether her finding of a suspicion of money laundering was rational, and her failure to afford Ramaphosa an opportunity to respond to information and evidence she used to reach those findings.

Ngcukaitobi, however, was scathing of her conduct. Quoting case law, he pointed out the obligations a Public Protector had in conducting her duties. 

"She must get the facts right, and the law right. But she got the facts fundamentally wrong … she has no facts with which she can back this thing up," he said, referring to two key findings - that Ramaphosa had deliberately misled Parliament, and a suspicion of money laundering was justified.

The suspicion of money laundering mentioned in the complaint, Ngcukaitobi added, rested on Watson and the way he had paid the money to CR17, not on the part of the president or his campaign.

He also pointed out the requirements for a candidate for the office Mkhwebane holds, which are strenuous and include that the person must qualify to be a judge or have spent 10 years practising as an advocate, among other requirements.

ALSO READ | EFF: Ramaphosa has a moral, ethical duty to disclose CR17 donors

"The [Public Protector] Act sets very high the bar as to what we should expect from the Public Protector. If you obtain this position, you must be prepared to be subjected to the most brutal scrutiny," Ngcukaitobi said.

"We do not try and impose an obligation on the Public Protector that she did not impose on herself when she took on the job … she must get the facts right, she must get the law right - if she falters, the outcome is irrational."

Ngcukaitobi also argued it was not Ramaphosa's duty to disclose the donations as Mkhwebane had found in her report.

"We waited in vain for an explanation on the factual basis of the conclusions," he told the court.

Parting shot 

As a parting shot, Ngcukaitobi asked the court to "make it clear to the Public Protector that she could not investigate anyone and everyone under the sun".

Mlambo thanked the senior counsels for allowing their juniors to argue some of the issues, saying it was commendable and "real transformation". 

"Far too often, we see junior counsels sitting and twiddling their thumbs," he said. 

Earlier in the day, Mlambo apologised to the legal teams and members of the public for what "News24 called the sweltering court room". 

"I have done everything I could," he said.

Read more on:    public protector  |  anc  |  busisiwe mkhwebane  |  cyril ramaphosa  |  pretoria  |  politics  |  courts  |  judiciary
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