Busisiwe Mkhwebane’s competence was once again brought into question as the battle between the public protector and President Cyril Ramaphosa escalated in the high court on Tuesday.
Ramaphosa asked the high court in Pretoria to review and set aside the report and remedial action based on Mkhwebane’s investigation into whether he deliberately misled parliament over a R500,000 donation.
The scope of the investigation was broadened by Mkhwebane to include a wider probe into the funding of his campaign for the ANC presidency in 2017.
Mkhwebane concluded that there was merit to allegations of money laundering and found that Ramaphosa had violated the executive code of ethics and may have exposed himself to a conflict of interest in receiving certain donations.
She ordered the National Prosecuting Authority (NPA) to investigate what she said was “prima facie” evidence of money laundering and ordered parliament to refer what she called Ramaphosa’s dishonesty to parliament and his unlawful failure to disclose his campaign donations to parliament’s ethics committee.
Counsel for the president, advocate Tembeka Ngcukaitobi, who appeared with Wim Trengove SC, was adamant that Mkhwebane lacked the jurisdiction to probe the donations as these were intended for an internal campaign that did not relate to state affairs or administrative action.
He said Mkhwebane went on a “frolic of her own” to investigate the campaign and subpoena bank records.
Referring to her findings, Ngcukaitobi said the public protector had ignored facts presented by the president and the conclusions she made from her findings were “bereft of fact”.
He said she was wrong that the president received financial benefits as well as a direct campaign contribution.
A trust was set up, of which Ramaphosa was not a beneficiary, into which campaign donations were paid and out of which payments were made.
Gcina Malindi, counsel for National Assembly speaker Thandi Modise, argued that “all remedial action” given by Mkhwebane in the matter was “inappropriate”.
It was also argued that the remedial action given by the public protector breached the separation of powers. This included instructing the national director of public prosecutions (NDPP), Shamila Batohi, to investigate evidence of money laundering and to report back to Mkhwebane.
Tim Bruinders SC, for the NDPP, said it is clear from legal letters written after the report was released that Mkhwebane did not mean to refer the information to Batohi and that the relevant legislation and the constitution does not contemplate “giving feedback”.
Her actions show that “she does not understand how to formulate a referral to the NDPP”.
But Muzi Sikhakhane SC, for Mkhwebane, insisted that the remedial action was appropriate and that the public protector had jurisdiction in probing the donations.
He said lawyers only looked at the state in terms of its three arms — the legislature, judiciary and executive — and that it is broader than that from a political-science perspective.
Sikhakhane said the state actually includes “territory, population, government and sovereignty”.
“The understanding that CR17 [Ramaphosa’s 2017 campaign for leadership of the ANC] was beyond the matters of the state is narrow, self-serving and incorrect,” Sikhakhane said.
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