A full bench of the Pretoria High Court on Wednesday ruled that the findings in Public Protector Busisiwe Mkhwebane’s investigation into the campaign funding for President Cyril Ramaphosa’s #CR17 ANC presidential race in 2017 should be set aside.
In a damning judgment against Mkhwebane Judge President Dustin Mlambo, Judge Elias Matojane and Judge Raylene Keightley found that the Public Protector had no jurisdiction to investigate the #CR17 campaign funding; that Ramaphosa was not obliged to make disclosures of the donations received by the #CR17 campaign and that the Public Protector had no foundation in fact and in law to arrive at conclusion that Ramaphosa had involved himself in unlawful activities.
The scathing judgment, the fifth of its kind in a short period, will embolden those calling for Mkhwebane to resign and add impetus to the parliamentary process to probe her fitness to hold office.
The judges rebuked Mkhwebane for not being “open minded”; conducting a “reckless” investigation that overstepped her jurisdiction; invoking the wrong law and using the wrong legal wording; ignoring evidence at her disposal; and for failing to appreciate the elementary and basic rules of law.
The court also made a punitive cost order against the office of the Public Protector to record its disapproval of her conduct in the investigation.
Acting spokesperson Oupa Segalwe said Mkhwebane would take some time to study the lengthy judgment, which the judges delivered two hours. She would decide her next step after that, which could include an appeal to the higher court.
Segalwe, however, warned that the views of the judges did not affect Mkhwebane’s credibility, adding that judicial officers also had their decisions regularly overturned by the higher courts.
Mkhwebane previously suggested that the litany of harsh judgments against her were intended to speed up her removal from office because she was investigation some of the high profile politicians who were considered untouchable.
Ramaphosa’s lawyer Peter Harris said the ruling was a “resounding victory” for his client. Harris declined to comment on whether Ramaphosa was still prepared to voluntarily step aside in a separate matter in which Mkhwebane was challenging the rules adopted by the National Assembly to allow for the parliamentary probe into her fitness to hold office.
Earlier this year Ramaphosa had asked that the court review and set aside the adverse findings made last July against him, which included that he misled Parliament in an answer to former DA leader Mmusi Maimane in November 2018 regarding a R500 000 donation to his election campaign by the late Bosasa chief executive Gavin Watson.
EFF deputy president Floyd Shivambu had also complained that Ramaphosa may have violated the executive ethics code in his parliamentary answer. Ramaphosa had said that the money was for a business deal between Watson and his son, but later corrected that.
Setting the tone at the start of proceedings, Judge Keightley said the case was about Mkhwebane’s report on Watson’s #CR17 donation and the competencies of the findings she made.
“Do the findings stand the test of constitutional rationality? At the heart of the case is the question of the outer limits of Public Protector’s powers,” she said.
She said the legal issues could be summarised in three parts relating to:
- Whether Ramaphosa misled Parliament in his answer to Maimane;
- Whether Ramaphosa was obligated to declare the benefits he received as a result of the #CR17 campaign; and
- Whether a prima facie case of money laundering was made.
Did Ramaphosa mislead Parliament in his reply on the Bosasa donation?
Judge Matojane said the court found that there were some “fundamental difficulties” with Mkhwebane’s findings.
“It is apparent that Mkhwebane was confused about the legal foundations,” he said, referring to the use of the wrong wording in the Executive Members Ethics Act which only used the word “wilfully” to describe deliberate and unbecoming conduct from members.
He said it was “difficult to understand how Ramaphosa’s answer could not be seen as reasonable” because at the time he provided his answer he had relied on what Maimane had put to him as facts.
He said the EFF had submitted that Ramaphosa acted unethically but the court disagreed because “no rule of Parliament” was mentioned to substantiate the breach of ethical conduct by Ramaphosa.
“In all fairness, [Ramaphosa] was entitled to be exonerated. The Public Protector did not make an obvious finding that [Ramaphosa] had told the truth about his son having a contract with Bosasa. It shows that she did not act with an open mind and thus she reached an irrational and unlawful conclusion.”
Did the #CR17 donations amount to benefits for Ramaphosa?
Judge Matojane said that in terms of the legal provisions, benefits were some form of direct sponsorship that carried material benefits. He said Mkhwebane treated the #CR17 campaign as representative of Ramaphosa’s personal interests and in that way “conflated” the issues.
“The president was involved in #CR17 activities as a member of the ANC. Nothing says his involvement placed himself at the risk of conflict with his official responsibilities. Nothing substantiates the finding that the president was enriched.”
He said the finding was based on conflation of issues. Mkhwebane had found that Ramaphosa, as the then deputy president, ought to have declared the benefits to Parliament.
However, Speaker of the National Assembly Thandi Modise had argued that the remedial action, including that Ramaphosa be referred to the joint ethics committee was not practical because the President was not an member of Parliament.
On prima facie suspicion of money laundering
Judge Matojane said the focus of the money laundering allegation was the payment of Watson to #CR17. However, he said, Mkhwebane extended the scope to include all payments to #CR17. He said Mkhwebane also relied on Prevent and Combat Corruption and Corrupt Activities Act to arrive at her findings but the legislation does not cover money laundering.
Money laundering was instead covered under Prevention of Organised Crime Act, and nowhere in her report did Mkhwebane allege that the money received by the #CR17 campaign had been proceeds of crime, which Ramaphosa also ought to have been aware of. The judge said the evidence did not support the view that the money (R500 000) moved from one account to the other in a series of complex transactions as alleged.
“The Public Protector did not have facts or evidence that public officials and funds were used. It is therefore inexplicable how the Public Protector made her finding. There is no evidence that money laundering was at play.”
While Mkhwebane had referred the money laundering matter to the National Prosecuting Authority, the National Director of Public Prosecutions Shamila Batohi wanted the court to set aside the suggestion that Mkhwebane would approve and monitor her work, arguing that it undermined her prosecutorial independence.
Judge President Mlambo said: “What makes the Public Protector’s conduct worse is that she refused to give [Ramaphosa] sight of the remedial action. It is unclear why she failed to comply with one of the most important principles of natural justice. It would have not slowed down her investigation.”
Mlambo said the punitive cost order against Mkhwebane was also granted.
Sympathy for Mkhwebane
The African Transformation Movement said the judgement would have long-term implications for the office bearers.
“The strenuous separation of conduct of office bearer when off duty as compared to when on duty will set South Africa on to a dangerous path of unaccountability,” said spokesperson Mxolisi Makhubu.
“We also fail to understand how the court failed to see a direct relationship between some of the funders who are customers of government. Some of their projects are discussed in Cabinet and thus a risk of conflicting the president is palpable. The superficiality applied by the court in a sophisticated state capture case is astounding,” he said.