CR17 report is not perfect, but the investigation was rational, court hears

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.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.

Related stories

Advertising

Subscribers only

ANC’s rotten apples on the chopping block

Now that the NEC has finalised its step-aside guidelines for those facing corruption charges, a swathe of officials will struggle to cling to their positions

Sisulu and Dlodlo punted to be on their way out

Because President Cyril Ramaphosa won the step-aside order in the ANC’s national executive committee, a cabinet reshuffle looms, with Sisulu and Dlodlo’s names on comrades’ lips

More top stories

Analysts expecting another attack ‘in the next few months’ in...

The extremist insurgency in Mozambique has been an ongoing threat since 2017. SADC needs to act now, say analysts

SIU probes how master of the high court fleeces the...

While the SIU delves into dozens of allegations of fraud, corruption and misconduct against officials at the master of the high court, many families have been left destitute after the death of their loved ones.

Somi’s Holy Room breaks the sounds of silence

Somi’s latest album, recorded live with a big band, was released as an ode to music-starved fans and empty theatres

New cyber scam targets property sales

Suspects appear in court on charges of fraud and forgery to intercept payments for title deed transfers and associated legal fees
Advertising

press releases

Loading latest Press Releases…