ConCourt rejects Public Protector appeal over CR17 campaign report
The Constitutional Court on Thursday rejected Busisiwe Mkhwebane’s appeal against a lower court judgment which found that her report into President Cyril Ramaphosa’s campaign funding contained errors in law – with the top court also expressing concern about Mkhwebane’s ‘quality of reasoning’.
A majority bench of the Constitutional Court has upheld a 2020 high court ruling which set aside Public Protector Busisiwe Mkhwebane’s report on President Cyril Ramaphosa’s “CR17” campaign to become ANC president in 2017.
Mkhwebane’s July 2019 report found that Ramaphosa had misled Parliament when he responded to a question from former DA leader Mmusi Maimane regarding a payment of R500,000 made by Bosasa into a Ramaphosa-linked account. Ramaphosa told Maimane that the payment was to his son, Andile, for consulting work carried out for Bosasa. He was later informed, however, that the payment was actually a donation to his CR17 campaign – about which the President subsequently informed the Speaker in a letter.
Mkhwebane also found that Ramaphosa violated the Executive Ethics Code by failing to declare donations made to his campaign, and that there was prima facie evidence of money laundering regarding his campaign donations. She further found that the President may have personally benefited from CR17 campaign donations.
In a majority judgment penned by Judge Chris Jafta, the Constitutional Court agreed with the high court that the President did not “wilfully” mislead Parliament in his response to Maimane.
“For a member of the executive to breach the [Executive Ethics] Code, she or he must have given incorrect information with the intention to mislead the legislature. Incorrect information alone is not sufficient to constitute a violation of the code,” the judges found.
“A perusal of the Public Protector’s report reveals that she seriously misconstrued the Code.”
The judges further upheld the finding of the lower court that the Public Protector was “plainly not authorised” to investigate the affairs of the CR17 campaign, because these did not relate to the activities of an organ of state.
“What is most concerning is the quality of the reasoning leading up to the various findings,” Judge Jafta wrote.
Mkhwebane’s suspicions of money laundering were dismissed by the ConCourt as not being supported by the available evidence.
“It appears that she… reached a conclusion that was devoid of any factual foundation,” wrote Judge Jafta.
Once again, it also did not fall within the Public Protector’s powers to investigate money laundering allegations.
The only judge to dissent on the ConCourt bench was the outgoing chief justice, Mogoeng Mogoeng. He wrote that his interpretation of the original complaint laid by Maimane meant that Mkhwebane was indeed entitled to investigate every aspect of the President’s CR17-related conduct that she considered questionable.
The ConCourt has also ruled that the high court must make a finding on an application brought by investigative journalism unit amaBhungane on whether the Executive Ethics Code should include an obligation for politicians to declare the donations made to campaigns run for positions within parties. DM