'Reckless, reckless, reckless!' - Mkhwebane 'thumbsucked' facts in finding against Ramaphosa, court hears

2020-02-04 13:31
Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)

Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)

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The legal battle between President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane got under way on Tuesday after months of strategic leaks to the media, and serious accusations of impropriety on both sides.

A full bench of the Gauteng High Court in Pretoria - made up of Judge President Dunstan Mlambo and Judges Elias Matojane and Raylene Keightley - presided over a sweltering court room 4E, with counsel for the applicant (Ramaphosa), advocate Wim Trengove SC, opening the arguments.

Trengove spearheaded the president's contentions that he had done nothing wrong, and that Mkhwebane had erred in law and fact in reaching the findings against him in her report.

Trengove hammered home the point, no less than five times, that Mkhwebane had acted with "reckless determination to make a finding against the president", as he took the court through his contentions of why her report was not only wrong in law, but irrational.

Ramaphosa has asked the court to set aside the report, as well as the remedial actions Mkhwebane ordered.

READ | Crib Sheet - Your ultimate guide to the key issues in Ramaphosa vs Mkhwebane court battle

Trengove said Mkhwebane had been "reckless, without explaining herself" and again "reckless, in apparent disregard to the damage she does to people".

Ramaphosa's lawyers have asked for a punitive costs order against Mkhwebane, but not a personal one.

"This court should express its displeasure with the Public Protector, and make an order of punitive costs. We are not asking for costs in her personal capacity, but we are seeking a punitive order of costs in recognition of her conduct."

Trengove said there was "[n]o hint or smidgen of evidence of dishonesty" in his response.

"It was Mr [Mmusi] Maimane who told the president who the money had been paid to," Trengove said, of Ramaphosa's response in Parliament that led to the complaint to the Public Protector.

He added that Mkhwebane had made an "extraordinary mistake of law" in misreading the text of the Executive Ethics Act when concluding Ramaphosa had misled parliament.  

"It's hard to understand how a lawyer could make such a mistake," he said.


Advocate Wim Trengove SC, for President Cyril Ramaphosa, opened the arguments on Tuesday. The full bench is comprised of (from left) Judge Elias Matojane, Judge President Dunstan Mlambo and Judge Raylene Keightley. (Kyle Cowan, News24)

On the issue of money laundering, Trengove submitted that no one, including Mkhwebane, had investigated money laundering.

"We submit that the Public Protector finding there is a suspicion of money laundering is unfounded… there is not a smidgen of evidence that there is money laundering."

"The finding was irrational, unfounded, and shows a reckless determination to make findings against the president."

'She got it wrong'

Advocate Tembeka Ngcukaitobi - also for Ramaphosa - argued after tea that, because Ramaphosa had never accrued any financial interest from the donations, it was legally incorrect for Mkhwebane to come to the finding that he had failed to declare the financial interest to Parliament.

Mkhwebane based her finding on funds that were paid from CR17 campaign accounts to the Cyril Ramaphosa Foundation (CRF) – a charitable trust.

Ngcukaitobi said Mkhwebane was told, and it was explained, that Ramaphosa was not a beneficiary of the CRF.

"The campaign contributions went to the CR17 campaign, not a cent went to President Ramaphosa," he told the court.

He explained that it was his belief that Mkhwebane had misconstrued the facts.

"The facts were told to the PP, but she overlooked them," Ngcukaitobi said, adding that she had "thumbsucked" some of the facts contained in her report.

"Not a cent of that money accrued to President Ramaphosa. In fact, he put R37.2m of his own money into the campaign," Ngcukaitobi told the court.  

In his heads of argument, this "mistake" by Mkhwebane is described as an absurdity.

"She simply got the facts wrong."

The view from the gallery

There was a selection of interested bystanders in the gallery, including a group of student advocates who came to witness some of the best lawyers and advocates in the country in action.

Two men sporting "Hands off the PP" T-shirts watched the morning's proceedings with interest and a small delegation of EFF members including Marshall Dlamini, took their seats shortly before arguments got under way.

Two small portable air-conditioning units pumped away desperately in opposite corners of the large court room, to no avail, as onlookers and the advocates visibly suffered in the humid court room.

One of the CR17 campaign managers, Bejani Chauke, sat in the back row mostly out of sight. Ramaphosa's legal advisor, Khanya Jele, sporting a small, red handheld fan, was in the front row.

Crowded on the bench to either side of Jele, were the expensive suits of the instructing attorneys, and journalists feverishly tapping away at the keys of their laptops.

Trengove, in his measured tone, was easily heard, despite the many groans of shifting people, and flip-flap of papers being used as fans to ward off the heat.

cr17, mkhwebane

Sejake Petros Motaung was in court on Tuesday to lend his support for Ramaphosa. He said he was tired of people attacking the President, and was working on a book. (Kyle Cowan, News24)


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