Batohi asks public protector if she had misunderstood her powers



Public protector advocate Busisiwe Mkhwebane will not be opposing President Cyril Ramaphosa’s application for an urgent interim interdict on her Bosasa report “in the interests of a speedy determination”.

Mkhwebane’s decision comes after a letter from the national director of public prosecutions (NDPP), Shamila Batohi asking her whether there had been a “misunderstanding” about the “independent mandates about our respective offices”.

In her Bosasa donation report, Mkhwebane found that Ramaphosa had deliberately misled Parliament when he answered a parliamentary question about a donation from Gavin Watson — the chief executive of African Global Operations, formerly known as Bosasa — to the CR17 campaign. The campaign was for Ramaphosa’s bid for presidency of the ANC at the party’s Nasrec elective conference in 2017.

The public protector also found that the president had breached the executive ethics code when he did not disclose to Parliament the donations to the CR17 campaign. She said there was “merit” in a suspicion of money laundering because the Bosasa payment had been made through “several intermediaries”.

As remedial action, Mkhwebane directed the speaker of Parliament, Thandi Modise, to refer the non-disclosure to Parliament’s ethics committee and to demand that the president disclose all the donations received by the CR17 campaign.

Mkhwebane, however, also instructed Batohi to, within 30 days, “take note” of her report and “conduct further investigation into the prima facie evidence of money laundering as uncovered during my investigation”. She further instructed that Batohi submit an implementation plan for the remedial action for her approval.

Ramaphosa immediately launched an urgent court case to set aside the report and, in the meantime, to interdict the enforcement of the remedial action.

Mkhwebane had already — almost immediately after Ramaphosa’s court case was launched — told the presidency that she would not be opposing his interim interdict bid, for the most part, because he had also applied for the main case to be heard on an urgent basis.

But they got stuck over the remedial action directed at Batohi, with Mkhwebane’s lawyers saying the president could not interdict it because it “relates to law enforcement agencies which cannot be interdicted from performing their constitutional functions”.

The president’s lawyers, however, suggested that it was the public protector, and not the presidency, that was stepping on the constitutional turf of the National Prosecuting Authority (NPA): “Our client is NOT interdicting the National Director of Public Prosecutions from fulfilling its functions … Since we understood you to be agreeing that the NDPP cannot be directed on how to perform her constitutional functions, we note with dismay your reluctance to agree that your instructions to the NDPP, to perform her constitutional obligations in the manner you direct, ought to be stayed”.

In the extremely polite letter from Batohi, dated August 5, the NDPP said if the intention of the remedial action was to notify her of the public protector’s “opinion that facts uncovered in her investigation disclosed the commission of a crime”, this was “appreciated, welcomed and noted”.

“Your report is being considered for the purpose of determining the way forward regarding an investigation, also given the establishment of the Investigative Directorate in the NPA,” Batohi said.

She was “concerned”, however, that the words of the remedial action applying to the NPA “appear to record the exercise of a power which you perhaps never meant to exercise”, said Batohi.

Referring to the exchange of letters between the public protector and the presidency, Batohi said the correspondence “suggests there might be a misunderstanding”.

“I understand and appreciate that, in terms of [the Public Protector Act], a public protector can do no more than notify the relevant authority charged with prosecutions, of his or her opinion that the facts disclose that an offence has been committed,” Batohi said.

She said it was important to clarify this misunderstanding “without resorting to the courts” and asked Mkhwebane to clarify urgently whether the intention was “simply to notify”.

“If that is so, I request that you please amend the wording of those paragraphs to clearly reflect this,” said Batohi.

The same day, Mkhwebane’s lawyers notified the presidency that it would not oppose the whole of the interim interdict. The public protector’s attorney, however, put it on record that his client did not agree with the president’s interdict against the NDPP but was acting “in the interests of a speedy determination of the review”.

Bulelwa Makeke, the NPA’s head of communications, said, at the time of publication, that Batohi was yet to receive a response to the letter.

The public protector had not responded to questions by the time of publication.

The Bosasa report is not the first of Mkhwebane’s reports to contain what could be seen as an instruction to the NPA. In her report into allegations of a “rogue unit” at the South African Revenue Service (Sars), Mkhwebane directs in her remedial action that Batohi should “note” that Mkhwebane is “aware” of the criminal proceedings against former Sars deputy commissioner Ivan Pillay and others who were part of the investigating unit and that “effective steps should be taken to finalise the court process as the matter has been remanded several times already”.

Asked about it at the time, Makeke said the NPA took it “as a point to note, just as she [Mkhwebane] has put it in the report”.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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