/ 1 July 2021

ConCourt dismisses Mkhwebane’s appeal on CR17 donation

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)

The Constitutional Court on Thursday dismissed an appeal by the public protector against the scathing high court ruling that set aside her report on donations to President Cyril Ramaphosa’s so-called CR17 campaign for the leadership of the ANC.

The ruling, delivered by Justice Chris Jafta, concurred with the high court that public protector Busisiwe Mkhwebane exceeded her powers and made grave errors in fact and law, but went further to remark that some of these could not have been made innocently. 

It marks a resounding, if predictable, legal victory for Ramaphosa, agreeing with his insistence that he did “nothing wrong” by not disclosing private funding for his leadership campaign.

“The public protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake,” Jafta said.

The court found no merit in Mkhwebane’s finding that Ramaphosa had misled parliament in 2018 when, in reply to an opposition question about a R500 000 payment from African Global Operations — formerly Bosasa — he initially suggested the money was paid to his son, Andile.

Ramaphosa shortly afterwards corrected himself in a note to the speaker, explaining that the money was, in fact, a donation to the CR17 campaign.

On Thursday the apex court agreed with the high court that the president was not obliged, in terms of the executive ethics code, to disclose the funding. It also accepted Ramaphosa’s stance that he deliberately chose not to involve himself in the funding of the campaign. 

But Jafta said Mkhwebane worryingly sought to alter the wording of the code so as to place the president in the wrong, even if he did not know about the payment and did not deliberately give an incorrect answer.

“Instead of making the finding that the president did not wilfully mislead parliament, the public protector effectively changed the wording of paragraph 2.3(a) to include deliberate or inadvertent misleading of the legislature, so as to cover the situation where wilfulness was not established,” Jafta said.

This allowed Mkhwebane to conclude that he had “inadvertently or deliberately misled parliament in that he should have allowed himself sufficient time to consider the question and make a well-informed response”.

“The public protector was wrong to change the quote; she could not have conceivably thought that wilfully could mean inadvertently — these words are mutually exclusive” the court found, stressing that she had exceeded the parameters of interpretation.

“The president could not inadvertently and deliberately mislead parliament, because these two words cannot apply at the same time — it is either one or the other. Therefore, the public protector was wrong on the facts and on the law with regards to the issue whether the president had wilfully misled parliament, and the high court was right to set aside her finding.”

The court said there was no evidence to support Mkhwebane’s further finding that Ramaphosa had exposed himself to a risk of conflict of interest between his public responsibilities and private interests, or abused his position to enrich himself.

“Instead, the evidence showed that African Global Operations donated R500 000 to the CR17 campaign; this cannot by any stretch be interpreted to mean that the president enriched himself or his son,” Jafta said.

The evidence on record showed that the president did not personally benefit from donations to the CR17 campaign and Mkhwebane should have rested her findings on that evidence.

The court also agreed with the high court that the embattled public protector went beyond the bounds of her mandate to investigate the funding of the CR17 campaign as a whole, when this was not raised in the two complaints she had received in relation to his parliamentary reply.

“None of the complaints submitted to the public protector referred to the affairs of the CR17 campaign, let alone that those affairs were in breach of the code. The high court was correct in concluding that the public protector had no authority to investigate the affairs of the CR17 campaign.”

As for Mkwebane’s conclusion that the manner in which the payment was made may point to money-laundering, the apex court said it appeared that she had disregarded all facts to arrive at the finding. It also faulted her for not disclosing to the president the private emails she obtained in the course of this line of inquiry.

The court aligned itself with the high court ruling, which said: “The conclusion is inescapable that, in dealing with this issue, the public protector 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.”

Jafta also agreed with the high court that Mkwebane had misread the law and based her findings on legislation that had nothing to do with money-laundering. Beyond that, she exceeded her powers here too, because the complaint did not relate to money-laundering, but to an alleged breach of the code.

He said it appeared that rather than approach the investigation with an open mind, Mkhwebane had been “unduly suspicious of the person she was investigating”.

In a dissenting judgment, outgoing Chief Justice Mogoeng Mogoeng disagreed and said it could not be concluded that Mkhwebane was “on a political frolic”.

He found that Ramaphosa was hardly oblivious to the funding effort and that it served his own private ambition, rather than the ANC in the abstract, hence the question of a conflict of interest was not spurious.

“It requires a hair-splitting exercise to seek to draw a line between the pursuit of the Presidency of the ANC and the desire to rise to the highest office of President of our country,” he said.

And it was similarly hard to separate the campaign funding from Ramaphosa’s private interests.

Mogoeng said Ramaphosa had a duty to find out, if he did not know, who funded his campaign and to disclose it to parliament. He added that ““in this corruption-infested country”, Mkhwebane cannot be reproached for widening her investigation beyond the scope of the complaint lodged by then opposition leader Mmusi Maimane.

“Whichever way you look at it, the president received a disclosable benefit, disclosable precisely because it has a potentially compromising short- and long-term effect.”

The majority judgment strengthens Ramaphosa’s position in a separate, high court case where he is opposing an application by the Economic Freedom Fighters to force disclosure of the records of four bank accounts linked to the campaign, obtained by Mkhwebane from the Financial Intelligence Centre.

Both the president and his attorney Peter Harris on Thursday welcomed the judgment.

“The findings of the Constitutional Court vindicate the president completely in his original view that the findings in the public protector’s report were wrong in fact and law,” Harris told the Mail & Guardian.

Thursday’s ruling adds to an embarrassing list of court losses suffered by Mkwebane as she faces an impeachment inquiry by parliament.

The high court ruling was among those considered by an independent panel that advised the legislature earlier this year that there was a prima facie case to be made for her removal from office.

For Ramaphosa, the ruling will come as succour as suspended ANC secretary general Ace Magashule argues that the president too should be suspended from his position for accepting private donations to contest an internal leadership struggle.