/ 10 March 2020

Mkhwebane’s CR17 report is ‘confused, inexplicable, irrational’

Her side of the story: Public protector Busisiwe Mkhwebane has labelled Basani Baloyi’s allegations ‘mischievous’.
Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)

In an emphatic victory for President Cyril Ramaphosa, the Pretoria high court has set aside public protector Busisiwe Mkhwebane’s report into his CR17 campaign for ANC president, saying her findings were irrational and that she had failed to approach some parts of her investigation with an open mind.

The blistering judgment came from a full bench of three judges, including the division’s most senior judge, Judge President Dunstan Mlambo. Unless overturned on appeal, the court’s order declared invalid the whole report and all the remedial action Mkhwebane directed in it — including that Parliament should require Ramaphosa to declare who his donors were. 

The court also made a punitive costs order against the public protector — because of some the “reckless” statements in her report. The court did not however direct her to pay it personally.

In her report, Mkhwebane found Ramaphosa had deliberately misled Parliament when he answered a parliamentary question from the Democratic Alliance’s then leader Mmusi Maimane about a R500 000 donation from Bosasa’s Gavin Watson to his CR17 campaign. The report went even further, revealing that she had investigated the whole of Ramaphosa’s #CR17 campaign to become president of the ANC and detailing transfers of millions of rands between the CR17 campaign’s various bank accounts. 

Mkhwebane said there was “merit” in a suspicion of money laundering and that “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.

On Tuesday, the court set aside all of these findings. 

Mkhwebane ‘confused’ 

On Mkhwebane’s conclusion that Ramaphosa had deliberately misled Parliament, the court said Mkhwebane had  been “confused” by what the applicable law was, in parts of her report “inexplicably” misstating the code of executive ethics. The error was repeated throughout the report, the court said, leading the judges to conclude that her finding on this score was based on a material error of law. 

But even on the facts, her report was irrational, said the court, since she herself had found that Ramaphosa had acted in good faith in how he approached answering the question.

When Ramaphosa submitted to the public protector that once she had accepted that he had acted in good faith, that should be the end of the matter, Mkhwebane called this “preposterous” in her report. The court took a dim view of this: “This reply displays a deep-seated inability or refusal to process facts before her in a logical and fair-minded manner. Such a response is difficult to reconcile with her constitutional obligations.”

Mkhwebane also should have exonerated the president of the second complaint she had received from the Economic Freedom Fighters’ Floyd Shivambu, about whether there had in fact been a contract between Ramaphosa’s son Andile and African Global Operations, formerly Bosasa. The report shows that the contract “clearly existed” but she did not draw “the obvious conclusion” that Ramaphosa was telling the truth. 

“In failing to do so, the public protector did not act with an open mind and so breached one of the cardinal requirements of her position,” said Judge Elias Matojane in handing down the judgment.

Lack of jurisdiction

The court also said that Mkhwebane did not have the jurisdiction to investigate the whole of the CR17 campaign, as she had done. Although she has very wide powers, this did not mean she was entitled to extend them outside her “sphere of competence”, which is limited to matters involving state affairs and public administration, said the court. 

She cannot investigate matters falling within the private sphere, said the court. 

Mkhwebane had wrongly conflated the president with the CR17 campaign, which was a matter of state affairs. Because she did not have jurisdiction to investigate the CR17 campaign, her findings on this score fell to be set aside, said the judges. 

The judges were particularly scathing about Mkhwebane’s finding that there was merit to a suspicion of money-laundering, saying her finding on this score was “reckless”, as well as irrational. 

There was no evidence, “even remotely” that money-laundering was at play, said the court. The essence of money-laundering was the concealment of the proceeds of crime. Unless there were proceeds of crime, it did not matter how many accounts or transactions were involved, said the court. Instead of looking at the Prevention of Organised Crime Act, which defines money-laundering, Mkhwebane had referred in her report to the Prevention and Combating of Corrupt Activities Act. 

She had “completely failed to properly analyse and understand the facts and evidence at her disposal. She also showed a complete lack of basic knowledge of the law and its application,” said Matojane, reading out the judgment in court.

Mkhwebane’s spokesperson, Oupa Segalwe, said the public protector “will study the judgement with the assistance of her legal team before mapping the way forward”. 

Read the full judgment here:

Judgment in Ramaphosa v Mkhwebane by Mail and Guardian on Scribd