Constitutional court dismisses Mkhwebane’s rescission bid on CR17 ruling

The constitutional court on Wednesday dismissed public protector Busisiwe Mkhwebane’s application for rescission of its damning ruling on her report on donations to President Cyril Ramaphosa’s 2017 campaign for the leadership of the ANC.

The court said no case was made out for rescission and dismissed the application with costs.

It was a last-ditch attempt by Mkhwebane to keep alive the report in which she found that Ramaphosa should be investigated for money-laundering in relation to his CR17 ANC election campaign.

In July last year, the apex court dismissed an appeal by Mkwebane to a high court ruling that set aside as unlawful her report on funding for his bid to become ANC president.

That ruling, delivered by Justice Chris Jafta, concurred with the high court that she had 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. 

The high 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.

The constitutional 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.

In doing so, Mkhwebane created scope for herself to conclude that Ramaphosa had “inadvertently or deliberately misled parliament” because he should have allowed himself enough time to arrive at 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.

In the report, Mkhwebane found that Ramaphosa had exposed himself to a risk of conflict of interest between his public responsibilities and private interests, but the court said the evidence did not suggest that Ramaphosa benefited personally from the donation.

And it held that she disregarded all facts to conclude that the manner in which the payment was made pointed to money-laundering.

“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.”

Ramaphosa’s legal team had rubbished Mkhwebane’s submission that her misinterpretation of the ethics code was a genuine mistake, and submitted that her rescission application did not deserve a hearing.

Rescission applications are rare, and are upheld only where it can be shown that a court order had been sought or granted in error, or in the absence of the affected party, or to set aside a glaring omission or ambiguity in a judgment.

But Mkhwebane is preparing another such application. She has put parliament on notice that she is filing for rescission of the constitutional court ruling that paved the way for MPs to commence a process to impeach her. 

In that ruling, the apex court put an effective end to her legal challenge to the rules governing the impeachment inquiry as unconstitutional. 
It is expected that she would rely on rule 42 of the Uniform Rules of Court, the same provision former president Jacob Zuma invoked unsuccessfully when he sought to have his conviction for contempt of court rescinded.

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