In yet another bid to stop her parliamentary impeachment process, Public Protector Busisiwe Mkhwebane is expected to rely on the 2007 ministerial handbook to argue that she did not invent the words “deliberately” and “inadvertently” and illegally insert them in the executive code of ethics as found by the Constitutional Court in July when she goes to the Western Cape High Court on Wednesday.
She is expected to argue that the handbook, which is the source of the wording of the executive code of ethics that the Constitutional Court has attributed to unscrupulous conduct on Mkhwebane’s part to nail President Cyril Ramaphosa over the #CR17 ANC presidential campaign funds, was used to induct every government minister until November 2019.
Former public service commission chairperson Advocate Richard Sizani told City Press on Tuesday that while the code was subject to a parliamentary process, the handbook had been used as reference in government from its date of adoption to Ramaphosa’s administration introducing a new version.
The 2007 handbook was accepted as an official guiding document on government policy for more than a decade. The phrase “members may not deliberately or inadvertently mislead the president, the premier or, as the case may be, the legislature” is contained in the handbook.
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Among the evidence that supported a prima facie case for Mkhwebane’s impeachment were the various damning findings of the highest courts in the land against her, most of which had called into question her ethical conduct and ability to interpret the law.
The fact that the 2007 version of the code was never promulgated – and therefore not legally binding on members of the executive – only came into prominence in 2020 when Mkhwebane pounced on Public Enterprises Minister Pravin Gordhan on allegations relating to his tenure at the SA Revenue Services and later Ramaphosa over the #CR17 funding.
Sizani said:
“The ethics issue is a parliamentary matter, but for questions on the appointment of staff and their benefits, we used the 2007 handbook. When the new ministers came in 2019 after the elections, we still inducted them and wrote a document on governance practices for executive authorities. We quoted directly in chapter four of that induction document on the appointment of staff of the ministers from the ministerial handbook of 2007.”
In the 2016 Nkandla judgment in which the Constitutional Court ordered former president Jacob Zuma to repay the public funds spent on upgrading his homestead in northern KwaZulu-Natal, the judges relied on the same 2007 code.
According to the court records in the Nkandla ruling, the judges found that Zuma had violated the provisions of the executive ethics code and referred to chapter one of the handbook for authority.
But in July last year, the Constitutional Court found that Mkhwebane in her application of the code, invented the words “deliberately or inadvertently mislead” solely for the ulterior motive to nail Ramaphosa.
In the ruling, the court relied on the code as contained in the 2000 ministerial handbook, which used the words “wilfully” instead of “deliberately” and “inadvertently” because the 2007 version was never promulgated.
Justice Chris Jafta said:
“These words carry mutually exclusive meanings. What was done by the Public Protector here exceeded the parameters of interpretation.
“On the facts placed before her, she accepted that the president did not wilfully mislead Parliament. This meant that he could not have violated the code.”
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Mkhwebane, who had been aggrieved because “the suggestion here is that she is so unscrupulous that she would go as far as to edit the code to have it read in the terms of her preference for purposes of making an adverse finding at all costs”, failed to persuade the apex court of expunging the damning finding against her.
Last month, she laid a complaint of judicial misconduct against Jafta.
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