President Cyril Ramaphosa’s aim to have the public protector investigated for perjury is a bold move which could signal her downfall. However, the Constitutional Court is not obliged to grant his plea and, according to lawyers, proving perjury could be a tall order for prosecutors willing to pursue the case.
Ramaphosa filed his opposition on Monday to Busisiwe Mkhwebane’s bid to rescind a court decision at odds with her findings against the president over an answer he gave in parliament.
The submission by Ramaphosa asks the court to not only dismiss Mkhwebane’s bid with personal costs but to escalate Mkhwebane’s impugned conduct — including a claim of lying under oath — to the prosecuting authority.
In Ramaphosa’s version, she was “manifestly dishonest” in her rescission attempt as Mkhwebane filed two “irreconcilable affidavits” about what she understood to be the duties of members of the executive when answering parliamentary questions.
At issue was her stated understanding of different sources outlining what members of the executive were required to do when answering questions. The only official and binding version of the rule, argued Ramaphosa, is in the executive ethics code of 2000.
What is in the code differs with what is contained in a ministerial handbook from 2007. The code states members of the executive cannot intentionally mislead parliament. The handbook says they cannot intentionally and/or accidentally mislead parliament.
The handbook reference featured as a footnote in an apex court judgment on Nkandla, which Mkhwebane had previously cited to support her position.
“Her allegation that she consistently and conscientiously relied on the 2007 version of the code because she thought herself bound to do so by this court’s Nkandla judgment, is manifestly false,” said Ramaphosa’s attorney, Peter Harris. Because of her opposing affidavits, implied the submission, Mkhwebane should be investigated by prosecutors.
If the court were to grant Ramaphosa’s request and refer Mkhwebane to the National Prosecuting Authority (NPA) for investigation, prosecutors must assess whether there were reasonable prospects of success to justify opening a criminal case.
NPA spokesperson Mthunzi Mhaga said: “The decision to prosecute is informed by evidence that is sufficient to sustain the charges.”
The legal officer of the Council for the Advancement of the SA Constitution (Casac), Dan Mafora, highlighted the severity of what Ramaphosa was proposing and the dilemma that the apex court must debate.
“The court does not make referrals to the NPA lightly and will only do so where it suspects that a serious breach of the law has occurred,” Mafora said.
The separation of powers outlines what the executive, judiciary and legislature can do. This makes Ramaphosa’s request a big ask since it means the head of the executive has pleaded with the highest court to refer the public protector, who is essentially an ombudsman, to prosecutors for criminal investigation.
Constitutional lawyer Michael Osborne said the president’s plea for the highest court to refer the head of a chapter 9 institution to the NPA was a bold move that could raise questions from the bench.
“If you’re going to convict anyone of perjury, you have to show that they deliberately said something that they knew to be inaccurate. In other words, the alleged perjurer must have been, loosely speaking, wilful.”
The public protector’s spokesperson, Oupa Segalwe, declined to comment on the substance of Ramaphosa’s submission. “We wouldn’t want to come across as disrespectful to the court by commenting in the public domain,” he said.
In July, the apex court determined Mkhwebane had not shown Ramaphosa purposefully misled the National Assembly in his answer about a R500,000 donation to the CR17 campaign. The deposit was made at the behest of Bosasa’s controversial CEO, Gavin Watson, who died in 2019.
Further, it found Ramaphosa had not personally benefited from the pledge. Mkhwebane is tackling the judgment with these findings and wants a rescission.
Mkhwebane’s bid prompted sharp criticism, especially from Ramaphosa. He emphasised two affidavits Mkhwebane made under oath within days of each another in which she gave contradictory versions of her grasp of the executive ethics code.
Whatever the merits or demerits of Mkhwebane’s bid, one law professor said provision for rescission was necessary. Warren Freedman from the University of KwaZulu-Natal’s law faculty said it was correct that the law allowed courts to rescind orders or judgments in certain circumstances.
The requirements for rescission, he said, were narrow and difficult to satisfy. “It’s right that the power should exist that a court can rescind its judgement, for the very reasons set out in the rules,” Freedman said.
Judith February, a lawyer and visiting fellow at the Wits School of Governance, argued that Mkhwebane’s application for rescission was “opportunistic” and she advised the court to tread carefully.
“This public protector has not operated very well within the bounds of the law. She hasn’t operated with due regard for the public interest. That’s been repeated time and time again in various judgements,” said February.
Freedman thought Mkhwebane’s application was a “long shot” with little chance of success. “The issue was dealt with in the main judgement,” he said.
February added: “I think it’s going to be very important for the Constitutional Court to try and draw a line in the sand and draft something which is authoritative and final.”
Osborne said “a reasonable argument could be made that the independence of the public protector may be compromised”.
The court has not yet indicated when oral arguments will occur.
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