The latest ruling from the Constitutional Court, which dismisses a rescission bid filed by the public protector, brings an end to advocate Busisiwe Mkhwebane’s efforts to vindicate her CR17 campaign findings against President Cyril Ramaphosa.
The apex court found “no case has been made” for having its July 2021 decision rescinded. The court dismissed Mkhwebane’s rescission bid with costs, on Wednesday.
Mkhwebane had hoped the court would make a U-turn on its dismissal of her case challenging a high-court decision nullifying her CR17 report and its orders.
Mkhwebane’s report probed Ramaphosa’s reply in parliament to a question from then DA leader Mmusi Maimane in November 2018, about a R500,000 donation from Bosasa to his ANC leadership campaign.
Speaking at the state capture inquiry, former Bosasa auditor Peet Venter said the CEO had ordered a transfer of funds intended for Ramaphosa’s campaign into an account tied to his son, Andile Ramaphosa.
The president replied to Maimane saying the deposit arose from formal business between his son and Bosasa. He later corrected himself, including in a letter to the speaker of parliament.
Ramaphosa subsequently said that on seeking more detail, he was told the payment Maimane asked about was not linked to a contract but “made on behalf of Mr Gavin Watson into a trust account that was used to raise funds for a campaign” supporting his run for ANC leader.
Maimane reported Ramaphosa to Mkhwebane. She investigated and reached findings that placed Ramaphosa’s political future at risk. Mkhwebane also issued instructions to the National Director of Public Prosecutions (NDPP) and parliament’s speaker.
Ramaphosa sought an urgent review of the report. In November 2020, the high court found Mkhwebane’s report unlawful and irrational. The full bench imposed punitive costs.
Mkhwebane then approached the Constitutional Court, seeking direct access. She insisted her determinations were correct, including that she had the power to probe Ramaphosa’s conduct in relation to ANC matters.
Mkhwebane challenged the high court’s finding that she had exceeded her powers, including in telling the NDPP and parliament’s speaker to take things further.
In July, the Constitutional Court granted Mkhwebane leave to appeal and referred the question of the constitutional invalidity of the code back to the high court. In all other respects, the appeal was dismissed.
The apex court’s decision in 2021, written by now retired justice Chris Jafta, found Mkhwebane misconstrued the law, took “leaps of logic”, reached findings “without a shred of evidence” and made “weighty errors, some of which defy any characterisation of an innocent mistake”.
Jafta wrote that Mkhwebane herself accepted that Ramaphosa had not wilfully misled parliament and it was wrong of her to find that Ramaphosa “deliberately and/or inadvertently” (two contradictory terms) misled the National Assembly.
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