/ 7 February 2020

Court tests protector’s powers

Concourt Rules Against Mkhwebane On Bankorp Report
Public Protector Busisiwe Mkhwebane (Felix Dlangamandla/Gallo)


The public protector “has no power to investigate all and sundry under the sun”, said counsel for President Cyril Ramaphosa in the high court this week.

The Nkandla judgment of the Constitutional Court in 2016 gave the public protector a huge boost in power. Famously depicting the public protector as David to the all-powerful executive’s Goliath, the judgment clarified that the public protector’s remedial action is binding unless it is set aside by the courts.

At a time when there seemed little accountability on the part of the government, former public protector Thuli Madonsela achieved a hero’s status — a rose was even named after her.

After the Nkandla judgment, the courts saw Madonsela flexing and, for the most part, winning. Although this development was widely celebrated by the public, constitutionalists quietly fretted. Because as wide and as strong as the public protector’s powers are, there are limits. Now, the courts have been asked to do the work of defining those limits.

Perhaps it is the result of the change of role-players — Madonsela has been succeeded by Busisiwe Mkhwebane and former president Jacob Zuma by Ramaphosa. But it could also be a natural progression — it is normal that, when a new power is recognised or granted, what follows is a refinement by the courts.

Two legal limitations to the power of the public protector took centre stage in the high court in Pretoria this week. The president and public protector were facing off over her bombshell report, released last year, that looked into donations to the president’s #CR17 campaign to become president of the ANC in December 2017.

The complaint that triggered her investigation was limited to one donation — R500000 from Gavin Watson, the chief executive of the allegedly corrupt company Bosasa. When the report was released, it emerged that Mkhwebane had investigated the entire campaign and all the donations it received.

Not only did she find that Ramaphosa had misled Parliament when he answered a question about Watson’s donation, she also found that he breached the executive code of ethics and the code applicable to members of Parliament by not declaring the donations to Parliament. She ordered Parliament to demand that Ramaphosa disclose the identity of his donors and the amount of their donations. She added that there was “merit” to a suspicion of money-laundering and directed the National Prosecuting Authority to investigate further the prima facie case of money laundering.

The first way that Ramaphosa’s team sought to define the outer limits of the public protector’s powers was their arguments that her powers must be exercised rationally. Before a full Bench of three judges that included Gauteng Judge President Dunstan Mlambo, the president’s counsel, Wim Trengove SC, and Tembeka Ngcukaitobi made a number of arguments as to why Mkhwebane’s report was irrational in law. These included an argument on procedural rationality: the report was fatally flawed because she did not give Ramaphosa an opportunity to respond to crucial aspects of it.

The second was that Mkhwebane had strayed into forbidden territory; she was not in law entitled to investigate donations to an internal political party campaign, because this was outside of her jurisdiction. As suggested by Judge Raylene Keightley, the outer limits of the public protector’s jurisdiction is a subject that had not yet been squarely tested by the courts.

Section 182(1) of the Constitution gives the public protector the power to investigate conduct in “the public administration” and “state affairs” in “all spheres of government”. Ngcukaitobi said donations to members of a political party for their internal campaigns did not fall inside this definition.

“Her powers are defined in the Constitution and further refined in the legislation,” he said, going through the Public Protector Act step by step to argue that this kind of donation was not a matter of state, government or public administration.

The Executive Ethics Act gave her further powers — to investigate a breach of the executive ethics code — but only on receipt of a complaint. In this case the complaint was about Watson’s donation only. She was not entitled to go on “a frolic” and investigate all and sundry, Ngcukaitobi said.

Mkhwebane asked the court to interpret “state affairs” more broadly — to include conduct that may occur in private but that could affect a public role.

Seeking clarity: President Cyril Ramaphosa’s counsel, Tembeka Ngcukaitobi and Wim Trengrove SC (below), argued that public protector Busisiwe Mkhwebane was irrational and had strayed way beyond her jurisdiction. (Felix Dlangamandla/Galo Images)

Her counsel, Muzi Sikhakhane SC, said: “I’m not suggesting she is the body to investigate everything under the sun … But in respect of donations to a member of Parliament … who wants to become president of the party in order to rise and become president of the state, are matters of state affairs.”

The president’s version of what constituted state affairs was “narrow, self-serving and incorrect. It’s not a proper understanding of the state,” he argued.

Sikhakhane urged the court to apply the law consistently with the Nkandla judgment and its own earlier judgments given while Madonsela was public protector and Zuma was president. He said the Nkandla judgment was “made for this case” because it was also a case between the public protector and the president.

He argued that Mkhwebane was correct to find that Ramaphosa had breached the executive ethics code and the code that applies to members of Parliament by not disclosing the donations.

Another question, which could have implications beyond this particular dispute, was whether donations into an internal party campaign fall within the ambit of these two codes. The executive code refers to “material benefits” while the MPs code refers to “financial interests”, “benefits of a material nature” and “sponsorships”, saying these need to be disclosed.

The president’s counsel said it was unnecessary for the court to even look at these codes, let alone interpret them, because the facts of the case didn’t implicate the codes or trigger their application.

They argued that, in terms of the disclosure of benefits, the two codes amounted to the same because the executive code says that, if you’ve disclosed under the MPs code, there is nothing further that needs to be done under the executive code. The overriding requirement in the MPs code was to disclose “financial interests”, they said.

Ngcukaitobi said Ramaphosa received no financial benefits from the donations — the money went to the campaign and was spent by the campaign on the campaign. Not a cent went to the president’s pocket, he said.

All of this had been meticulously explained to the public protector, he said, yet she chose to ignore it. The finding of a breach of the codes was unfounded by the facts, Ngcukaitobi said.

“If it is factually unfounded, it is irrational. And if it is irrational it cannot stand,” he said.

Sikhakhane said the fact that no money went to Ramaphosa’s pocket was neither here nor there. “Becoming state president is a benefit,” he said.

Then there was the argument brought by the amaBhungane Centre for Investigative Journalism. Its counsel, Steven Budlender SC, argued that if the court decided the executive code — as it stands — does not require disclosure of internal political party campaigns, then it is unconstitutional and had to be changed in the future.

He said the code, as it now stood, required the disclosure of gifts. But if the court were to say that internal political party donations were not covered, the following would be the result: If he were to give two good bottles of wine to the deputy president, worth more than R350, the deputy president would have to disclose it to Parliament. But if someone were to donate R5-million to the deputy president’s internal party political campaign, no disclosure would be required. This could “never be consistent with our constitutional scheme”, he said.

He said amaBhungane was not in court about Ramaphosa “or any other president”, but were challenging the constitutionality of the code.

Judgment was reserved.