At its most basic, the Constitutional Court on Thursday ruled Public Protector Busisiwe Mkhwebane overstepped her powers in investigating the CR17 campaign for the ANC presidency — and that President Cyril Ramaphosa did not wilfully mislead Parliament on 6 November 2018 in his response to an opposition question over a R500,000 donation from Bosasa, now Africa Global Operations. 

The Public Protector may only investigate breaches in terms of the Executive Ethics Act and the Executive Ethics Code — and then only to the extent of the complaint. Money laundering was not within the scope of the Public Protector’s powers. 

But the devil, as always, is in the detail. 

In a win for amaBhungane, matters of funding internal party contests — still secret as the Political Party Funding Act regulates donations to those participating in general elections — must now return to the high court for full argument.

Ramaphosa has been ordered to pay costs because he was the only one opposing amaBhungane’s request that the Executive Ethics Act and Executive Ethics Code be read as requiring the disclosure of donations made to campaigns for party political leadership.

The ANC has for years expressed its disquiet over what’s euphemistically called “lobbying for positions”, and, at various conferences has raised the issue of money changing hands. But nothing has happened. Other political parties, like the DA, are similarly shy about revealing the sources of their internal funding.

Right now, political parties are deemed to be private, voluntary associations, and for the Public Protector to expand her probe into a party’s financial affairs was a step too far, according to the Constitutional Court.

“When a political party holds internal elections, it does not exercise a public power. Nor does it perform a public function in terms of the Constitution or legislation. Instead, it acts in terms of its constitution, which constitutes a contract between it and its members,” ruled Constitutional Court Judge Chris Jafta.

“Therefore, its affairs do not fall within the scope of matters to be investigated by the Public Protector under section 182(1) of the Constitution.”

But it wasn’t quite finish and klaar.

Mkhwebane also overstepped statutory and constitutional powers by effectively moulding the Executive Ethics Code to her own purpose — without having any authority to do so.

“The Public Protector’s report reveals that, on the facts placed before her, she accepted that the president did not wilfully mislead Parliament. This means he could not have violated the code,” according to the judgment.

“The Public Protector then changed the wording of the code to include ‘deliberate and inadvertently misleading’ so as to match with the facts. Having effected the change in the code, the Public Protector proceeded to conclude that the president had violated the code. It is unacceptable that the Public Protector did what no law had authorised her to do.”

Thursday’s Constitutional Court majority judgement ended Mkhwebane’s efforts to salvage her CR17 campaign funding report which had been set aside by lower courts as “fatally flawed” and “irrational”. The highest court in South Africa upheld the findings of those courts, which, in March 2020, set aside the CR17 report as invalid. 

There’s a bit of déjà vu, here. The Constitutional Court also dismissed Mkhwebane’s appeals to save her report into the apartheid-era Absa Bankorp company, in which she ordered Absa to repay R1.125-billion and, at least initially, instructed the chairperson of Parliament’s justice committee to effect a constitutional amendment to the mandate of the South African Reserve Bank (SARB) in Section 224 of the Constitution.

Both the CR17 and Absa Bankorp reports are deeply political. And with those, Mkhwebane has exposed herself to criticism of being politically motivated, particularly as various courts over the years have described her conduct as “dishonest” and “biased”.

When the Absa Bankorp report was released in the middle of the ANC’s June 2017 policy conference, the radical economic transformation (RET) grouping rejoiced; the report became part of the push for the nationalisation of the SARB. When the CR17 report was released in July 2019, its findings that Ramaphosa misled Parliament and benefited from dodgy donations that amounted to money laundering became central in the politicking against Ramaphosa and his clean governance image from both inside the governing ANC and outside by, for example, the EFF. 

Mkhwebane has been supported by the EFF in various court cases, including the CR17 report on which the EFF went to court to request the release of the bank statements. That judgment is outstanding.

Thursday’s Constitutional Court judgment is a scathing assessment of Mkhwebane. “(W)hat is most concerning is the quality of the reasoning leading up to the various findings.”

In South Africa’s superheated, noisy politics, Ramaphosa has struggled to shed the insinuation that he enriched himself through the CR17 campaign for the ANC presidency, or that his donors — usually referred to as white monopoly capital or the Stellenbosch Mafia — had bought influence in his administration. It’s been a consistent feature in his Q&As in the House. 

On Thursday, the presidency issued a one-sentence statement saying Ramaphosa “welcomes and respects” the Constitutional Court judgment. 

National Assembly Speaker Thandi Modise said in a statement, “(The) judgment, once and for all, clarifies the powers of the Public Protector in relation to Parliament. It also adds force to the principle of the separation of powers upon which our constitutional democracy is based.”

But the Office of the Public Protector hit back, seemingly suggesting that the Constitutional Court had erred in upholding the lower court’s declaration of invalidity of the CR17 report.

In interviews on eNCA on Thursday, legal services manager in the Office of the Public Protector, Muntu Sithole, acknowledged, “We were expecting a positive result, but it did not come our way”. Seemingly taking exception to the Constitutional Court’s position that Mkhwebane had substituted words in the ethics regimen, Sithole pointed out that the Public Protector had not just relied on the Executive Ethics Code, but also the ministerial and presidential handbooks.

The DA and EFF complaints were brought strictly under the Executive Ethics Act and Executive Ethics Code. Even if an argument is accepted that the wording of the ministerial and presidential handbooks could be considered, this doesn’t hold water.

The ministerial handbook, now known as the Guide for Members of the Executive, states that members of the executive “may not deliberately or inadvertently mislead the president or the premier as the case may be”. No mention of Parliament or the legislature.

The presidential handbook simply refers to conduct in line with the Executive Ethics Act, and code. 

Return to start. The Executive Ethics Code states, “A member of the executive may not wilfully mislead the legislature to which they are accountable”. And the Constitutional Court judgment finding that it was “inconceivable” that the code’s sole use of “wilfully” could be read to also mean “inadvertently”, as the Public Protector had it, to arrive at a finding that Ramaphosa had misled Parliament. 

“Those words carry meanings that are mutually exclusive… What was done by the Public Protector here exceeded the parameters of interpretation.”

Thursday’s Constitutional Court judgment is a scathing assessment of Mkhwebane. “(W)hat is most concerning is the quality of the reasoning leading up to the various findings.”

This echoes findings from the independent expert panel asked to assess DA chief whip Natasha Mazzone’s request for a parliamentary inquiry into Mkhwebane’s removal from office. In late February 2021, the panel recommended an inquiry into misconduct and incompetence, two of the three constitutional grounds, alongside incapacity, for removal from office by Parliament. 

Sufficient evidence emerged to find “sustained incompetence”, according to the panel: “This suggests an inability to learn from mistakes by adopting a more careful approach.” 

The parliamentary Section 194 inquiry committee has been established and parties have nominated their representatives. All that’s left is for the inquiry to set a date for its first meeting. 

The clock is ticking on Mkhwebane’s non-renewable seven-year term that ends in October 2023. In South Africa’s furiously paced and noisy politics, the Public Protector may yet tough it out until then. DM