The Public Protector’s latest in an ever-growing litany of legal catastrophes began thus: In November 2018, a question was posed to President Cyril Ramaphosa in Parliament by Mmisi Maimane, the then leader of the Democratic Alliance, relating to the payment of an amount of R500,000 into an account which allegedly belonged to the president’s son, Andile Ramaphosa.
This payment was allegedly made by the late Gavin Watson, who was Chief Executive Officer of Africa Global Operations (AGO), better known in the Zondo Commission circles as Bosasa.
In his response, the president explained that his son was involved in business with AGO and that the payment was related to work which he had conducted for that company. The president must have been otherwise advised in that a week later, he wrote a letter to the Speaker to explain that the answer he had given in response to the question which was posed to him was incorrect. He explained that the payment was made on behalf of the late Mr Watson to the CR17 campaign.
This gave rise to two complaints directed to the Public Protector. The first complaint was from Maimane regarding the relationship between the president and AGO. The second complaint was lodged by Floyd Shivambu, the deputy president of the Economic Freedom Fighters (EFF), a party known for its consistently punctilious attitude to any banking controversy, regarding the alleged breach of the Executive Ethics Code (Code) by the president.
In light of these complaints, the Public Protector conducted an investigation, the scope of which was whether the president, in giving an incorrect answer to the question directed to him in Parliament, misled Parliament in breach of the Executive Members’ Ethics Act (Members Act) and the Code.
At the conclusion of the investigation, the Public Protector found that the president deliberately misled the National Assembly. Further, she found that the president had exposed himself to a situation involving the risk of a conflict between his official duties and his private interests or used his position to enrich himself and his son through businesses owned by AGO. In light of these findings, the Public Protector took remedial action which had a direct effect on the president, and further directing the Speaker and the National Director of Public Prosecutions to comply with the orders therein.
The president launched an application to review and set aside the Public Protector’s report which met with success before the Gauteng High Court. The matter meandered its way to the Constitutional Court where, by 7-1 (Mogoeng CJ dissenting ), the appeal was dismissed, save for an issue raised by amaBhungane which had filed a conditional application to challenge the Code and was granted leave to intervene as a respondent in those proceedings. AmaBhungane did not enter the fray in respect of the Public Protector’s report, but had brought a discrete constitutional challenge to the Code.
The Constitutional Court was required to consider a number of questions of which, within the scope of one column, only two can be canvassed.
The first issue is that the Public Protector’s finding that the president misled Parliament held serious consequences. In this connection the Code provides thus:
Members of the Executive may not:
(a) wilfully mislead the Legislature to which they are accountable.
The problem was that the president had within a week corrected his initial response, thus raising the question of how the president could be held to wilfully have misled Parliament. Well, that is easily solved if you are the Public Protector in that you simply change the wording in your finding. Thus, in her report, she references the Code thus: the wording of the Code includes “deliberate and inadvertent misleading”.
As Justice Chris Jafta pointed out in the majority judgment:
“The Public Protector’s report reveals that, on the facts placed before her, she accepted that the President did not wilfully mislead Parliament. This meant that he could not have violated the Code. The Public Protector then changed the wording of the Code to include “deliberate and inadvertent 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.”
It is regrettable that is all that was said about her conduct in that it can only be explained in one of three ways: either the Public Protector is legally incompetent, or she acted disingenuously or a combination of both took place.
The second issue which deserves immediate comment is the finding that the president was obliged to disclose the R500,000 as a donation. The Public Protector found that the president at the time of receipt of the donations was the deputy president and hence a Member of Parliament. He was therefore bound by the Code to declare such financial interest.
In this connection Justice Jafta said:
“This reasoning fails to address the point raised by the President, namely, that he received no donations and that he had no claim or say over money donated to the CR17 campaign. Instead, in a confusing manner, the Public Protector addressed the issue of members of Cabinet exposing themselves to a potential risk of conflict of interest between their official responsibilities and private interests. This had no bearing whatsoever on the issue whether the President received donations. What the Public Protector was required to do in order to address the President’s argument, was to refer to facts which established that the President received donations and that he failed to declare them. If such facts existed, the Public Protector would have referred to them in dealing with the President’s argument. The omission of those facts from her report is not an oversight. They simply do not exist.”
As a result, it is not only a mere columnist who raises questions about Mkhwebane’s conduct. This is what the majority of our highest court concluded:
“The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the Code. This is surprising because the Public Protector is, by definition, a highly qualified and experienced lawyer. As required by law, she has no less than 10 years’ experience in the relevant field of law.”
The one question mark against the legal advice given to the president concerned opposing the challenge of amaBhungane against the validity of the Code made under the Members Act for not being consistent with the Constitution. Correctly, the Constitutional Court found that the high court should not have ducked determining this important issue and hence it has referred this question to the high court for determination. Given the president’s opposition to this challenge, he was ordered to pay the costs involved in this aspect of the litigation.
As to Mogoeng CJ’s minority judgement, the less said the better save for one issue. Despite the legal attempt to save the Public Protector from her own conduct by failing to deal with the damning findings of the majority, the Chief Justice raises an important point regarding the need to change the law and ensure far greater disclosure of all forms of funding of political activity.
While it is not legally justifiable to find in favour of the appeal on the basis of what the law ought to be rather than existing law, the Chief Justice has highlighted the need for significant further legal reform. That notwithstanding, the Public Protector, to adapt Acting Chief Justice Sisi Khampepe’s phrase from paragraph 58 of her judgment in the Zuma case, is left up the legal creek without a paddle. And in this situation, the crucial office of the Public Protector is simply bereft of any legitimacy. DM