Public Protector Busisiwe Mkhwebane failed to understand her jurisdiction and failed to correctly apply the law and assess the evidence before her, a full bench of the North Gauteng High Court ruled on Tuesday as it set aside Mkhwebane’s report on President Cyril Ramaphosa’s campaign finances for the ANC’s 2017 national election.
The judgment is the latest in a string of court decisions against the public protector, who is going to court next week to challenge the parliamentary process to have her removed.
In July 2019, Mkhwebane found that Ramaphosa had misled Parliament when he said R500,000 had been paid by Bosasa – now called African Global Operations – CEO Gavin Watson to his son Andile. It was actually paid towards his CR17 campaign.
Mkhwebane also found there was a prima facie campaign of money laundering against Ramaphosa regarding donations to his campaign and instructed NPA head Shamila Batohi to provide her with a plan for investigating the issue.
“The public protector acted unlawfully in exercising her powers in the manner that she did in this matter,” said Gauteng Judge President Dunstan Mlambo while overturning and setting aside Mkhwebane’s report on Tuesday.
The court found Mkhwebane had, “for some inexplicable reason”, misstated the executive code of ethics. The code says members cannot wilfully mislead Parliament but Mkhwebane claimed it said members could not inadvertently or deliberately mislead the house.
Ramaphosa was kept at an arm’s length about donors to his ANC election campaign and corrected his answer to the National Assembly once his CR17 team told him the R500,000 was paid by Watson to his campaign.
The court found he acted in good faith and Mkhwebane’s finding was “fatally flawed due to a material error of law” and that she “reached an irrational and unlawful conclusion on the facts before her”.
The public protector launched her investigation after receiving complaints from former DA leader Mmusi Maimane and EFF Deputy President Floyd Shivambu.
Both complaints related specifically to Watson’s R500,000 donation but Mkhwebane expanded her investigation to include all donations made to the CR17 campaign. She found Ramaphosa should have declared the donations for his ANC campaign as they influenced his position in public office.
The court found that the public protector, who is mandated to investigate public matters, overstepped her jurisdiction by delving into private affairs and conflated the CR17 campaign with the Presidency.
It said there was no basis in law to justify her claim that Ramaphosa should have disclosed donations to his ANC campaign and Mkhwebane’s finding was “irrational and unlawful”.
The court slammed the public protector’s finding that there was a prima facie case of money laundering and took its time to explain the law to Mkhwebane.
The public protector claimed that donations were made through “several intermediaries”, suggesting a potential case of money laundering. The court, however, said there was no evidence to prove the claim and even if deposits went through various accounts, “There can be no offence of money laundering without the proceeds of crime,” said Judge Elias Matojane.
While there are widespread allegations of corruption against Watson and Bosasa, Mkhwebane had no evidence that the donation to the CR17 campaign came from the proceeds of crime.
Mkhwebane’s report also cited the incorrect law on money laundering and ignored the Financial Intelligence Centre’s view that there was no case against the President.
“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,” said Matojane.
“We find that her findings on the money laundering issue were not only irrational but reckless.”
The court also criticised Mkhwebane’s remedial actions instructing the speaker of the National Assembly and national director of public prosecutions (NDPP) to act against Ramaphosa and said it was “concerned” by her attitude to both officials.
The public protector can notify the NPA of a finding so it can decide whether to investigate and prosecute, but Mkhwebane’s instruction to the NDPP to provide a plan of action on investigating Ramaphosa for money laundering encroached on the NPA’s prosecutorial independence, the court found.
“The public protector has no power to direct the NDPP when or how to carry out her functions,” said Mlambo.
He said Mkhwebane exceeded the lawful limit of her powers and showed a “complete lack of understanding” in relation to the NPA and a “clear failure” to understand prosecutorial independence.
The court also found that the public protector not only failed to take the evidence before her properly into account but she had also refused Ramaphosa’s request to see her proposed remedial action before her report was published.
“Instead and despite of this evidence before her she persisted with her thesis that there were reasons to suspect that the CR17 campaign was involved in State Capture of some sort and the prima facie case of a suspicion of money laundering she had been establishing. She recklessly ignored the evidence at her disposal,” said Mlambo.
The public protector’s office was ordered to pay Ramaphosa’s legal fees on a punitive scale.
After a string of critical court judgments against her, Parliament has begun a process to remove Mkhwebane from office. The public protector is seeking to interdict the process, claiming that it is unconstitutional. The case will be heard in the Western Cape High Court next week. DM