Public Protector 'is not rogue', Mkhwebane's lawyer tells court

Public Protector Busisiwe Mkhwebane. (Gallo Images).
Public Protector Busisiwe Mkhwebane. (Gallo Images).

The first of two days of arguments in President Cyril Ramaphosa's review application of Public Protector Busisiwe Mkhwebane's report on his CR17 campaign, closed with sweeping statements over Ramaphosa's alleged dishonesty to Parliament.

Counsel for Mkhwebane, advocate Muzi Sikhakhane SC made broad comparisons between Mkhwebane and former public protector Thuli Madonsela, pointing to judgments delivered by the same Gauteng High Court in Pretoria that defined the powers of a public protector as of "the widest character".

But when questioned three times by Judge Elias Matojane about the Ramaphosa's response in Parliament and whether it was not that the president was misled instead, Sikhakhane demurred.

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Former DA leader Mmusi Maimane asked Ramaphosa about a payment to his son Andile Ramaphosa from corruption-accused company Bosasa in a follow-up question in Parliament in November 2018.

The president responded by saying Andile had a contract with Bosasa, and he had specifically seen the contract.

Days later, he corrected this when he became aware the payment in question was in fact a donation to the CR17 campaign, in a letter to the Speaker.

Matojane asked Sikhakhane three times if what Ramaphosa said was true. 

Sikhakhane eventually responded by taking the court through the president's response, line by line.

Andile Ramaphosa did in fact have a contract with Bosasa, a News24 investigation previously revealed. But Sikhakhane seemed reluctant to be drawn into that aspect of the case.

Despite whether or not the contract existed being a specific point in EFF deputy president Floyd Shivambu's complaint, Mkhwebane did not tally on the issue in her report.

Sikhakhane also took umbrage with her being branded a "rogue" public protector by lawyers for Ramaphosa during earlier arguments.

Advocate Wim Trengove SC earlier described Mkhwebane as a "rogue public protector", adding that she appeared to have acted with "reckless determination" to find against the president.

Sikhakhane's arguments went to the heart of Ramaphosa's case against the report – his contention that Mkhwebane did not have the jurisdiction to conduct an investigation into his entire CR17 campaign, but should have confined herself to the R500 000 donation that was complained about.

He submitted that the courts had previously clarified that the Public Protector must be allowed to determine the scope of their investigations.

For Ramaphosa and others to now argue that just because she investigated the campaign per the complaint to determine if suspicions of money laundering were substantiated, did not mean she had found him guilty, Sikhakhane held.

He said instead Mkhwebane had recognised that she should refer the issue to a more competent authority – namely the police and the National Prosecuting Authority (NPA).

This was in reference to the public protector's remedial action ordering the National Director of Public Prosecutions (NDPP) Shamila Batohi to investigate if money laundering took place.

Batohi also approached the court, as a respondent in Ramaphosa's application, to ask for this specific remedial action to be set aside.

Treat Mkhwebane the same

Advocate Tim Bruinders SC, for Batohi, said it was within the NPA's remit to investigate money laundering, but Mkhwebane overstepped when she instructed Batohi to report back to her about how she planned to act.

"The notion that the public protector is some super sheriff that can swing into the office of the NDPP… is simply not contemplated [in the Public Protector Act]," Bruinders said. 

ALSO READ | Mkhwebane 'driven by reckless determination to malign' Ramaphosa, say lawyers - report

He emphasised that the NPA had to maintain "investigatory independence".

"You must forget that you love Cyril Ramaphosa," Sikhakhane told the court and added that Mkhwebane should be treated the same as her predecessor, Madonsela.

In fact, he argued, Mkhwebane only did what the court, in particular a judgment by Gauteng Judge President Dunstan Mlambo, who is also presiding over this matter, told Madonsela to do previously.

Arguments are set to continue on Wednesday.

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