Under pressure from the questioning of the Constitutional Court Bench, Public Protector Busisiwe Mkhwebane’s lawyer, Muzi Sikhakhane, ended up disavowing much of Mkhwebane’s report into President Cyril Ramaphosa’s CR17 campaign finance.

It “may be” that Mkhwebane was wrong to detect money laundering in the movement of Ramaphosa’s campaign funds, Sikhakhane acknowledged. The head of the National Prosecuting Authority (NPA) would probably not have ended up prosecuting Ramaphosa for money laundering, as Mkhwebane advised in her report, Sikhakhane conceded.

“I accept that in drafting [the report] she may have gone further than what she should have,” the advocate said.

He added that he was “not submitting that each and every aspect” of the report was “perfect”.

The report in question was being considered by the Constitutional Court on Thursday after the North Gauteng High Court set it aside with scathing criticism in a March 2020 judgment. The Public Protector is asking the country’s highest court for leave to appeal.

At the heart of the matter is a November 2018 question put to President Cyril Ramaphosa in Parliament by former DA leader Mmusi Maimane, who asked the president to account for a R500,000 payment seemingly made by State Capture company Bosasa’s CEO Gavin Watson to Ramaphosa’s son Andile. In his response, Ramaphosa said he was aware of the payment, which was for business conducted by Andile for Watson.

But a week later, Ramaphosa wrote to the Speaker of the National Assembly to explain that he had made a mistake. The payment in question was not to his son Andile, but was in fact made to the campaign driving Ramaphosa’s ANC leadership bid, CR17.

Following a complaint laid with the Public Protector by the EFF, Mkhwebane wrote a report on the matter in which she determined that Ramaphosa had deliberately misled the National Assembly. She ordered NPA head Shamila Batohi to investigate possible money laundering related to the CR17 account, and President Ramaphosa to declare all donations made to his campaign.

It is this report, and the associated remedial action, which the High Court set aside earlier this year, ruling that Mkhwebane had drastically overstepped her mandate.

It was sufficient and reasonable for her, looking at the movement of money from different accounts, to say, ‘I reasonably suspect that this movement of money warrants an investigation by the relevant authority’.

Arguing on behalf of Mkhwebane, Sikhakhane on Thursday once again contended that Ramaphosa’s position at the time of the Bosasa payment – as deputy president – “allows him to be investigated by the Public Protector”.   

It was rational of Mkhwebane to refer her suspicions of money laundering to the head of the NPA, the advocate argued.

“It was sufficient and reasonable for her, looking at the movement of money from different accounts, to say, ‘I reasonably suspect that this movement of money warrants an investigation by the relevant authority’.”

Justice Leona Theron pointed out that the Public Protector made reference to Ramaphosa’s alleged money laundering being an offence under the wrong statute in law. Mkhwebane appeared to believe that money laundering fell under anti-corruption statutes, when instead it is dealt with in law under covering up the proceeds of criminal activities.

In other words, the Public Protector was accusing Ramaphosa of money laundering while seemingly not knowing which laws relate to money laundering.

It was an “insignificant error”, Sikhakhane suggested.

Moving to Mkhwebane’s finding that Ramaphosa “wilfully” misled Parliament initially about the R500,000 payment, Sikhakhane was asked by the Constitutional Court judges on what basis she came to this conclusion.

Sikhakhane responded that it was mainly on the basis of the “certainty” with which Ramaphosa initially gave his answer to Parliament that the payment was for services rendered by his son.

“If I steal your robe from the court and return it 10 days later because I feel remorse, it does not take away from my wilful theft,” Sikhakhane argued.

In the papers filed by Ramaphosa’s legal counsel, it was stated that the president would seek a punitive costs order against amaBhungane if the appeal failed. Budlender told the Bench that this decision was inappropriate given the public interest nature of the order being sought.

But Ramaphosa’s “certainty” related to his son’s relationship with Bosasa, not CR17, Justice Zukisa Tshiqi pointed out. Justice Tshiqi expressed concern about Mkhwebane’s finding in the report that whether Ramaphosa’s first answer to Parliament was given mistakenly or not did not matter.

“That worried me a bit,” Justice Tshiqi said.

Sikhakhane suggested that Mkhwebane was being “clumsy” in her use of terms like “deliberate” and “wilful” when it came to Ramaphosa’s alleged misleading of Parliament, but the judges seemed unsatisfied.

“The Public Protector is a lawyer, you are a lawyer, we are all lawyers and we know those terms do not mean the same thing,” Justice Rammaka Mathopo said.

Appearing for Ramaphosa later in the day, advocate Wim Trengove accused Mkhwebane of “errors so obvious and so patent that no lawyers acting in good faith would have made those errors”.

What Mkhwebane’s report revealed, Trengove suggested, was “a reckless determination by the Public Protector to nail the president”.

Trengove pointed out, with regards to Ramaphosa’s initial incorrect answer to Parliament about the R500,000 Bosasa donation, that “the premise on which the president was asked to answer the question was that Mr Watson had paid R500,000 to the president’s son, and the president was asked to explain how come”.

It would have been far easier and less compromising for Ramaphosa to explain that this was a campaign donation rather than a payment to his son, had he been aware, Trengove suggested.

The notion that this is vexatious or frivolous litigation is, we submit, a startling conclusion.

On the Public Protector’s allegations of money laundering, Trengove said that one of Mkhwebane’s staff members had interviewed an officer from the Financial Intelligence Centre who told her there was no evidence of money laundering.

“Such evidence as she had was that there was no evidence of money laundering,” Trengove said.

Ramaphosa’s lawyers have also argued that it is beyond the scope of the Public Protector’s powers to give orders to other state functionaries, as Mkhwebane did when she instructed NPA head Batohi to investigate the president.

The Constitutional Court also heard an appeal from investigative journalism unit amaBhungane, represented by advocate Steven Budlender, to declare the Parliamentary Ethics Code inconsistent with the Constitution. AmaBhungane contends that members of the executive should, in future, be required to declare campaign donations relating to internal party elections in the same way they are required to declare other financial benefits annually.

Budlender described it as a “bizarre situation” whereby presents exceeding the value of R300 to the president have to be disclosed, but a million rand campaign contribution does not.

There is a “quite extraordinary disconnect between what needs to be disclosed and what doesn’t”, Budlender argued.

“It is an extraordinary lacuna in a code aimed at promoting open and responsible government.”

In the papers filed by Ramaphosa’s legal counsel, it was stated that the president would seek a punitive costs order against amaBhungane if the appeal failed. Budlender told the Bench that this decision was inappropriate given the public interest nature of the order being sought.

“The notion that this is vexatious or frivolous litigation is, we submit, a startling conclusion,” Budlender said.

But it was indicated later in the day that Ramaphosa’s request for a punitive costs order against amaBhungane had been dropped, without explanation.

Budlender was not amused.

“That is not the way the president should be litigating against NGOs,” he said, suggesting that other NGOs might well have been cowed into withdrawing their case due to the threat of the costs order.

After a long and gruelling day, judgment was reserved. DM