Mkhwebane’s conduct in CR17 probe reckless, unfathomable and unlawful, court finds

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Judge President Dunstan Mlambo. (Sarel van der Walt)
Judge President Dunstan Mlambo. (Sarel van der Walt)

Public Protector Busisiwe Mkhwebane displayed a lack of basic understanding of the law and was reckless in reaching serious findings against President Cyril Ramaphosa in her report into the CR17 campaign.

Mkhwebane’s entire investigation of donations to the CR17 campaign was unlawful as it fell outside her jurisdiction and she acted unlawfully by directing the Speaker of Parliament and the National Director of Public Prosecutions (NDPP) to take further actions, which amounted to encroaching on their independent powers of discretion.  

A full bench of the Gauteng High Court in Pretoria, comprising of Judges Elias Matojane and Raylene Keightley as well as Judge President Dunstan Mlambo, handed down a scathing judgment on Tuesday, after hearing arguments in February, setting aside the report and its remedial actions.

Mkhwebane was also ordered to pay punitive costs, which was a sign of the court’s disapproval, said Mlambo. In respect of Ramaphosa’s application, she was further ordered to pay the costs of the speaker and the NDPP.

Mkhwebane’s July 2019 report found Ramaphosa had violated the Executive Ethics Act by deliberately misleading parliament and for failing to declare financial benefits he derived from the CR17 campaign.

This related to an oral response Ramaphosa gave to a question over a R500 000 payment, at the time believed to have been made by corruption-accused company Bosasa to his son Andile Ramaphosa. It later transpired the money was paid to an account used by the CR17 campaign.

The court found the report could have been set aside simply because Mkhwebane failed to provide Ramaphosa a right of reply before she finalised the report after receiving his responses to a preliminary report – a basic right in law.

Nevertheless, the court dealt Mkhwebane’s report hammer blows in each and every respect. She did not succeed in a single argument in defence of her report.

Suspicion of money laundering

Mkhwebane found that “prima facie evidence” existed to support the suspicion of money laundering surrounding money flows in the various accounts utilised by CR17.

The court found that she based this finding on no evidence whatsoever and displayed “anything but an open mind” in her approach.

“This kind of allegation, even if implied and not stated, should not be made without strong supporting evidence,” the judgment reads.

“The Public Protector had no evidence before her to substantiate this very serious allegation…we find that her actions in reaching this finding are not only irrational, but indeed, reckless.”

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The court also pointed out that, in her report, Mkhwebane relied on the Prevention and Combating of Corrupt Activities Act (PRECCA) to reach a conclusion that suspected money laundering had taken place.

PRECCA, the court said, had nothing whatsoever to do with money laundering. Mkhwebane should have instead relied on the Prevention of Organised Crime Act (POCA).

“In dealing with this issue, the Public Protector failed to properly analyse and understand the facts and evidence at her disposal. She displayed a complete lack of basic knowledge of the law and its application.”

Jurisdiction

The court found that Mkhwebane did not have the jurisdiction to investigate the CR17 campaign because it was not a matter relating to state affairs.

The Constitution and the Public Protector Act made it clear the Public Protector could only lawfully investigate matters relating to state affairs and spheres of government.

“She [Mkhwebane] was certainly allowed to investigate the president. But not the CR17 campaign…she assumed jurisdiction on the basis that he was deputy president at the time of the donations. However, this did not catapult the affairs of CR17 into the realm of state affairs.”

The court also pointed out that Mkhwebane seemed to have “confused” Ramaphosa and the CR17 campaign – but that she had no evidence before her that the CR17 campaign had ever received any public funds.

Mkhwebane found Ramaphosa had violated the Executive Ethics Act by failing to declare the donations to Parliament, as he was deputy president at the time, and the donations amounted to a personal benefit to him.

“The Public Protector’s finding that the president received a direct financial benefit is based on her conflation of the president and the CR17 campaign. There is no evidence that he received money from the campaign.”

A high price

Mlambo read out the final part of the judgment and said, while delivering the court’s decision on costs, that the office of the Public Protector came not only with broad powers, but also with important obligations.

“[The Public Protector’s] approach to each investigation must be with an open mind, and impartial. She should not rush to conclusions, but should tread carefully. If she does not, she runs the risk of undermining the very reason for the existence of the office of the Public Protector. She risks losing the confidence of the public.

“The Public Protector did not engage meaningfully with the submission of the president…she recklessly ignored evidence at her disposal,” the judgment reads.

Mkhwebane’s attitude toward the speaker was also concerning, the court held.

In an answering affidavit, Mkhwebane stated that the speaker’s application to have one remedial action set aside was “tantamount to declaring support for the president”.

“These are reckless statements to make, especially by one state institution of another,” the court said.

Application dismissed

The court dismissed an application by the amaBhungane Centre for Investigative Journalism, which formed part of proceedings to seek an order declaring the Executive Ethics Code unconstitutionally vague.

AmaBhungane asked the court to order Parliament to, within 12 months, amend the code to make the declaration of private political donations part of interests members have to declare.

The court found the application was not properly brought, but did not rule on the merits of amaBhungane’s argument.

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