/ 26 November 2020

Public protector’s ‘mistakes’ were made to nail the president, court hears

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.

Public Protector Busisiwe Mkwhebane blindly and recklessly investigated the CR17 campaign, President Cyril Ramaphosa’s legal counsel argued on Thursday. 

This was during the Constitutional Court hearing of the legal battle between the public protector and the president over a report into the latter’s successful 2017 bid for the ANC presidency. 

The much-anticipated hearing comes the day after National Assembly speaker Thandi Modise’s announcement of the names of the three-member panel who will head the inquiry to Mkhwebane’s removal from office.

In her report on the CR17 campaign, Mkwhebane found that Ramaphosa deliberately misled parliament when he answered a question by then Democratic Alliance leader Mmusi Maimane about a R500 000 campaign donation by Bosasa’s Gavin Watson. Mkhwebane also made the finding that there was reason to suspect the campaign was being used to launder money.

In March the Pretoria high court delivered a blistering judgment setting aside the report. The court ruled that Mkhwebane’s findings were irrational and that she did not have evidence of money-laundering. The court further found that Mkhwebane did not approach the complaints against the president with an open mind.

On Thursday, Ramaphosa’s legal counsel, Wim Trengove SC, said Mkhwebane’s “egregious” errors in drafting her report are an indication that she acted in bad faith.

Earlier, Mkwhebane’s lawyer, Muzi Sikhakhane SC, conceded that his client’s report was not perfect. However, he argued, the decisions taken by the public protector were not irrational.

But Trengove hit back at this position. Mkwhebane’s mistakes are “symptomatic of a reckless determination by the public protector to nail the president”, he said.

“Now, we are all lawyers and we all make mistakes. And we sometimes can’t understand, in retrospect, how we could have made the errors we did,” Trengove later added.

“The public protector, however, not only very materially affects the lives of people, but when she has an opportunity to explain and correct her error she fails to do so in this litigation … Instead she blindly bats on to nail the president with no other apparent motive.”

Also acting on behalf of Ramaphosa, Tembeka Ngcukaitobi SC, argued that Mkhwebane was wrong finding that the president directly financially benefited from the money donated to his campaign.

Ngcukaitobi said the only factual basis on which the public protector made her finding that the president financially benefited from the donations was that the money went to the Cyril Ramaphosa Foundation Trust. 

But, he noted: “The only link to Cyril Ramaphosa, is that he is a founder, and that the trust bears his name. But the trust is a charitable trust. It is not a family trust. The President is not a beneficiary of the trust, none of his family members are beneficiaries of the trust. The president is a donor to the trust.”

Ngcukaitobi added that the public protector does not dispute the character of the trust. “The bottom line is that at the level of review, it is utterly unsustainable. The report cannot be justified by reference to the facts. It is clear that she had an outcome,” he said. 

“She got facts that are inconvenient; she discarded them. She wanted to reach her outcome — that should simply not be tolerated.”