Ramaphosa did not mislead on CR17, Mkhwebane cannot probe political parties' affairs, top court rules
Embattled public protector Busisiwe Mkhwebane has been dealt yet another legal blow in her bid to defend her report into President Cyril Ramaphosa’s CR17 presidential campaign funding.
The Constitutional Court on Thursday found her to have erred both in fact and law in her probe.
This comes after the apex court confirmed the invalidity of Mkhwebane’s report and found that she had no authority to compel Ramaphosa to declare the donations to the CR17 campaign.
Mkhwebane and Ramaphosa had been in a protracted legal battle after she found Ramaphosa to have misled parliament over the R500,000 paid by former Bosasa boss Gavin Watson towards his CR17 campaign, which he initially told parliament was paid to his son for services rendered when asked by the then DA leader Mmusi Maimane during a Q&A follow-up in 2018.
Mkhwebane also found Ramaphosa to have violated the executive ethics code through his “improper relations” with Bosasa and that he had failed to disclose CR17 donations and added that her probe had uncovered prima facie evidence of money laundering.
Ramaphosa however launched a review application against the report before the North Gauteng High Court in Pretoria, which set it aside and declared it unlawful, irrational and invalid in March last year.
Mkhwebane, backed by the EFF, launched a direct access application before the apex court to appeal the ruling.
Delivering the judgment, justice Chris Jafta said Mkhwebane had in her own report accepted that Ramaphosa had not willfully misled parliament.
“In part of the report, the public protector recorded that the president’s ‘conduct, although in good faith, is inconsistent with his office as a member of cabinet’. But instead of making the finding that the president did not willfully mislead parliament, the public protector effectively changed the wording to include 'deliberate or inadvertent' misleading of the legislature so as to cover the situation where willfulness was not established,” Jafta said.
Jafta questioned why Mkhwebane had used “deliberate” and “inadvertent” in her findings.
“She could not have conceivably thought willfully could mean inadvertently. These words are mutually exclusive. What she did went beyond the parameters of interpretation. The finding itself is framed in terms that are concerning. The president could not inadvertently and deliberately mislead parliament because these two words cannot apply at the same time,” he said.
The court ruled that Mkhwebane was wrong both on the facts and the law in her report.
Jafta said sections 3 and 4 of the Public Protector Act did not give Mkhwebane the powers to investigate matters falling outside the complaints.
Jafta said Mkhwebane also had no power to investigate and find that Ramaphosa had exposed himself to a risk of conflict between his official duties and private interests or that he had used his position to enrich himself and his son in relation to business relations with Bosasa.
“This issue did not form part of the complaint she was investigating and therefore it was not competent for the public protector to investigate a matter that was not covered by the complaints which gave her the jurisdiction to investigate.
"This was compounded by the fact that, under the same issue, she proceeded to determine whether the donations made to the CR17 campaign were benefits of a material nature to the president which he was under a duty to declare,” Jafta said.