Public Protector believes high court erred in ruling against her and is now determined to take #CR17 donation case to Constitutional Court.
Public Protector Busisiwe Mkhwebane is preparing to appeal to the Constitutional Court to argue that the high court in Pretoria erred in finding that President Cyril Ramaphosa did not mislead Parliament on the Bosasa #CR17 campaign donation or benefit materially from the lobby to support his election as ANC president.
Mkhwebane wants the Constitutional Court to clarify the powers of the Public Protector’s office because of what she argues are inconsistent rulings from the same courts.
City Press obtained the founding affidavit which was attested to a commissioner of oaths dated April 14.
The Public Protector’s office said the papers had been served on the relevant parties, but not yet filed with the court.
Last month a full bench of the Gauteng Division of the Pretoria High Court ruled that Mkhwebane’s decision to investigate and report on the #CR17 election campaign for Ramaphosa’s ANC leadership election in December 2017 was invalid and set it aside. The court also nullified the related findings and remedial orders.
“The [high court] order [against the Public Protector] is made in the face of uncontested evidence that was before me regarding millions of rands that were donated into the #CR17 campaign and uncontested emails contradicting [Ramaphosa’s] statements on oath that he was kept ignorant of the identities of those who donated millions to his campaign,” she argues.
The ruling also went against the clear provisions of the Constitution, the Executive Members’ Ethics Act, and the Executive Ethics Code, as well as case law in both the Supreme Court of Appeal and the Constitutional Court regarding the scope and powers of the Public Protector when dealing with investigations, she said.
Mkhwebane said the high court ruling contradicted its previous judgment in respect of the powers of the Public Protector and the scope of remedial action.
“I submit that this matter requires consistent application of the principles set out by our courts and should be binding in respect of matters in which similar disputes are involved. I submit that only this honourable Court [Constitutional Court] can bring these weighty constitutional matters to finality.”
The EFF, which joined the high court proceedings as an interested party, also lodged leave to appeal with the Pretoria High Court.
But, Mkhwebane said: “I submit with respect that the grounds for leave to appeal raise constitutional matters which should be decided by this court.”
Mkhwebane said her application for leave to appeal was “about the constitutional obligations and statutory powers of the Public Protector [and], most importantly, it is about the accountability of all holders of public power within the state. I submit that I have good prospects of success and ask the above honourable court [Constitutional Court] to grant me leave to appeal.”
She also asked for condonation of the late application, which had been due at the end of March, but could not be filed on time because of the Covid-19 coronavirus national lockdown regulations.
“However, my attorneys have advised me that in view of the extension of the lockdown to the end of April 2020, it is better to file this affidavit to ensure that it is not too late.”
Mkhwebane argued that the high court was inconsistent in its application of the law.
“The ruling by the full bench was in conflict with a previous finding made by the same high court”, arguing that the matter “required consistent application of the principles set out by our courts and should be binding in respect of matters in which similar disputes are involved”, she wrote in the 112-page founding affidavit.
She argued that until the highest court in the land finally determined on the issues raised, “uncertainty will prevail in respect of the real scope of the constitutional mandate of the Public Protector as well as the constitutional obligations of members of Cabinet in terms of the Constitution”.
The initial complaint against Ramaphosa was brought to the Public Protector by former DA leader Mmusi Maimane in November 2018.
In her report, Mkhwebane had found that Ramaphosa had misled Parliament in an answer to Maimane in November regarding a R500 000 donation to his ANC presidential election campaign by the late Bosasa boss Gavin Watson.
Ramaphosa had initially said the money was for a business deal between Watson and his son, Andile Ramaphosa, but later corrected that.
In January last year EFF deputy president Floyd Shivambu submitted a second complaint that Ramaphosa violated the Executive Ethics Code in his answer – an allegation Mkhwebane also confirmed in her report last July.
In his answer, Ramaphosa was familiar with the issue raised by Maimane, Mkhwebane argued in the papers.
“Not only was he familiar with what the issue was, he had actually specifically enquired about it from his son. He had even seen a contract that related to the payment referred to by Maimane. In this regard, he satisfied himself that the payment to his son, Andile Ramaphosa, was legitimate and related to services rendered by Andile Ramaphosa’s company to Bosasa.
“What was of concern was that the president was aware of the payment at least two months prior to Mr Maimane raising the issue, and that on enquiring from his son, his son informed him that in December 2017, his company Blue Crane Capital (Pty) Ltd had signed an Advisory Mandate with [Bosasa] for possible business entry in some East African countries.”
From the question Maimane posed, said Mkhwebane, “there were at least two issues that ought to have concerned the president”.
First, she said, Maimane was specific that monies were transferred to a trust account called “EFG2” for the benefit of the president’s son. Second, the monies were transferred on October 18 2017, prior to his son’s company signing with Bosasa.
She contends that the donations were benefits of a material nature to Ramaphosa and claims the evidence also revealed that some monies collected through the #CR17 campaign account were transferred into the Cyril Ramaphosa Foundation account.
Accordingly, said Mkhwebane, the campaign donations towards the #CR17 campaign were a form of sponsorship and were benefits of a material nature to Ramaphosa.
“He was therefore duty-bound to declare such financial benefit accruing to him. In fact, while the #CR17 suggests that the campaign was for the renewal of the ANC, no evidence in this regard is found in the papers. All this points to the common cause fact that the donations were for the benefit of the president’s campaign”.
Oupa Segalwe, the acting spokesperson for the Public Protector, said: “The papers have been served on parties but not filed with the court. Accordingly, they are not public documents until the court has them. They will be filed only after the lockdown.”
On Saturday Ramaphosa’s lawyer, Peter Harris, said: “We confirm having received the Public Protector’s application for leave to appeal. We will be vigorously opposing her application and are preparing papers to that effect.”
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Senior journalist | City Press
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