President Cyril Ramaphosa's lawyers launched a broadside against public protector Busisiwe Mkhwebane in the Constitutional Court, labelling her motivation behind findings relating to his campaign financing as a “reckless determination to nail the president”.
An application for leave to appeal directly to the highest court in the land, against a judgment setting aside her report which found that Ramaphosa deliberately misled parliament and that there was a prima facie case of money laundering in his campaign for the ANC presidency was heard on Thursday. The previous judgment also held that she had no jurisdiction to investigate private campaign donations.
The case has its genesis in a parliamentary answer given by Ramaphosa on a question by former DA leader Mmusi Maimane about a R500,000 payment made to his son Andile by state capture implicated facilities company Bosasa.
Ramaphosa's answer was wrong, and he sought to correct it soon thereafter to indicate that the payment was actually a donation to his campaign and not to his son.
The Constitutional Court case once again places the spotlight on the tensions between the public protector and the executive, which has seen Mkhwebane spending a lot of time in court as she defends her findings, with a raft of her reports now already reviewed and set aside, such as the report in question. She is also currently attempting to approach the Supreme Court of Appeal over a judgment dismissing her attempt to halt the parliamentary process to remove her from office.
Thursday's application was brought by the public protector, the EFF and investigative journalism unit amaBhungane, who brought a conditional application against the current executive ethics code.
The report itself has been used as ammunition by Ramaphosa's detractors, especially since he campaigned for the ANC presidency on an anti-corruption ticket.
Wim Trengove, SC, counsel for Ramaphosa, did not mince his words about mistakes Mkhwebane had made in the course of the report, with two material ones. The first was that she used different renditions of the executive ethics code throughout the report, a mistake he labelled “a symptom of recklessness of an appalling kind”.
He said the second mistake was that she conflated the concepts of inadvertent and deliberate when she found Ramaphosa had deliberately misled parliament in his answer to Maimane.
He said it was a confusion which was so basic that a good faith lawyer would not have made it.
“We submit that both these mistakes are symptomatic of a reckless determination by the public protector to nail the president,” Trengove said.
He said her mistakes and subsequent refusal to correct them, was not only “egregious” but speaks of the conduct of a public protector who acts in bad faith.
Tembeka Ngcukaitobi, SC, also for Ramaphosa, said Mkhwebane did not have the facts to justify the conclusion that there was prima facie evidence of money laundering.
He said she got “facts that were inconvenient” and ended up disregarding them.
Timothy Bruinders SC, acting for national director of public prosecutions (NDPP) Shamila Batohi, said Mkhwebane had run an “opportunistic and dishonest” case against Batohi.
This comes after the public protector's counsel said in court on Thursday that where Mkhwebane had overreached with her remedial action, which ordered Batohi to give feedback to her and look into the money laundering allegations, that part could simply be removed and kept as a mere referral.
The court had dealt with the remedial action to Batohi, who constitutionally has to be independent and as a result took the remedial action on review, in some detail during arguments.
Muzi Sikhakhane, SC, for Mkhwebane, was adamant that Ramaphosa did deliberately mislead parliament. He said it was not unreasonable for Mkhwebane to come to the conclusion of a prima facie case of money laundering, even if the NDPP would have not come to the same conclusion.
He said he did think there was a “clumsy way” in swapping inadvertent with deliberate or wilful, which the justices pointed out was clearly different legal terms.
He said Mkhwebane did have jurisdiction to look into the campaign donations.
Judgment was reserved.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.