Busisiwe Mkwhebane’s report on donations made to the CR17 campaign may not be perfect. But the decisions taken by the public protector in drafting the report were rational, the Constitutional Court heard on Thursday.
This was during the highly anticipated hearing of the legal battle between Mkhwebane and President Cyril Ramaphosa, who the public protector found deliberately misled parliament when he answered a question about a R500 000 campaign donation from Bosasa’s Gavin Watson. Mkhwebane dug even further than the complaint that Ramaphosa misled parliament, also investigating his 2017 ANC presidency campaign for alleged money laundering.
In March, a full bench of the Pretoria high court set aside the report, calling it “inexplicable”, “reckless”, and “without basis in fact or law”.
The public protector “reached an irrational and unlawful conclusion on the facts that were before her,” the scathing judgment reads. “Further, she did not approach the issue with an open mind.”
But on Thursday, Mkhwebane’s counsel, Muzi Sikhakhane SC, argued that though the report is not without its imperfections, it should not be thrown out in its entirety. “I’m suggesting that there are aspects … that may well be vulnerable to challenge. And I think it’s those aspects only … rather than the entire report, that must be set aside.”
Sikhakhane said the Constitutional Court must determine whether during her investigation Mkhwebane “did what a reasonable person in her position or circumstances would have done” and not “whether the decisions she made were correct, or what we would expect, or wanted”.
The main areas of Mkhwebane’s CR17 probe under scrutiny on Thursday were her decisions to investigate the campaign for money laundering and to order the national director of public prosecutions (NDPP) to conduct further investigations into the matter.
Mkhwebane did not have the jurisdiction to investigate the campaign, nor did she have the power to direct the NDPP on how to carry out her prosecutorial functions, the high court ruled.
Sikhakhane argued that Mkhwebane had reason to suspect the money was being laundered through the campaign. “She may or may not be right, but the suspicion is reasonable. It is the movement of money between different accounts.”
But Justice Leona Theron asked how the public protector reached that conclusion without dealing in her report with what constitutes money laundering.
Sikhakhane responded: “You may fault her for that … First of all, I’ve accepted that there is a possibility — and I think it’s a strong possibility — that the NDPP looking at what happened here would not have found money laundering. But I don’t think it is irrational for her [Mkhwebane], looking at the movement of money … to refer it to the body that should look at those details.”
He later said that he accepts that, in drafting the report, Mkhwebane may have gone “further than what she should have”.
“And I’m not submitting that every aspect of this report, scrutinised by all of us as we are, in terms of the drafting and how far it went, is perfect,” Sikhakhane added.
“I’m not suggesting that. And perfection is no standard in administrative law. I’m suggesting that what she did under the circumstances is rational. It may not be done, other people may have done it differently, but that is not the test.”
The hearing continues.