High court sets aside Mkhwebane’s report into CR17 donation

The High Court in Pretoria has set aside Public Protector Busisiwe Mkhwebane’s report into the CR17 presidential election campaign in 2017.

It also found President Cyril Ramaphosa did not deliberately mislead parliament about a R500,000 Bosasa donation to his CR17 campaign.

In November 2018, Ramaphosa was questioned by then DA leader Mmusi Maimane in the National Assembly over a R500,000 payment ostensibly made to his son, Andile, by the now late Bosasa CEO, Gavin Watson.

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Ramaphosa responded that he was aware of the payment and that it was all above board and part of Andile’s consultancy agreement with the Krugersdorp company, which has been mired in controversy over allegations of bribery and corruption for more than a decade.

Days later, and with journalists hot on the trail of the origin and destination of the payment, on November 14, Ramaphosa sent a letter to the speaker of parliament, correcting his oral reply. Now he said, he had been made aware that the payment was, in fact, a donation to his successful 2017 ANC presidential campaign.

This prompted the DA to ask the public protector to look into the payment and concerns over money laundering in the way the payment was made, and the relationship between Ramaphosa’s son and Bosasa.

Mkhwebane duly investigated the complaint, together with a second complaint from the EFF, and published her report in July 2019. She found Ramaphosa had deliberately misled parliament, and recommended an investigation by the police into possible money laundering.

Ramaphosa wanted the court to declare that the Public Protector was wrong in her findings that:

• Ramaphosa misled Parliament in breach of the EMEA when responding to Maimane’s question. He maintains he was entirely honest, and when he realised he gave a wrong answer, corrected it immediately;
• Ramaphosa failed to disclose the donations to CR17 in terms of the code of ethical conduct to Parliament, which Mkhwebane has found he should have done as he was deputy president at the time. Ramaphosa contends in court papers that the donations were not for his personal benefit, and he did not have to declare them;
• A suspicion of money laundering exists as a result of the R500,000 donation from Watson, and how the campaign conducted its finances. Ramaphosa contends Mkhwebane is wrong in law in this finding, and that she had no jurisdiction to investigate the CR17 funding.

Judge Elias Matojane said on Tuesday that while Ramaphosa may have been “careless” in his answer to Maimane, it could not be said that he deliberately misled parliament.

He found Mkhwebane’s finding to have been “fatally flawed due to an error of law”.

Mkhwebane’s finding that Ramaphosa deliberately misled parliament was set aside. In addition, Mkhwebane “reached an irrational and unlawful conclusion” after not making an obvious finding that Ramaphosa had told the truth about his son having a contract with Bosasa.

When Mkhwebane said in her report that one of Ramaphosa’s arguments was “preposterous”, her reply “displays a deep-seated inability or refusal to process facts before her in a logical and fair-minded manner,” said the court.

Was the Ramaphosa’s conduct a matter of state affairs because he was deputy president when he received a private donation for the CR17 campaign? According to the court, CR17 activities fell within the rights of participating members in the private domain.

The conduct of participating members was not a conduct in state affairs. They exercised their right to participate in party activities.

Her finding in this regard was also set aside.

On findings that Ramaphosa should have disclosed the donations to CR17 in terms of the code of ethical conduct to parliament as he was deputy president at the time, the court found otherwise.

It said Ramaphosa was not obliged to disclose the donations received by the CR17 campaign as he did not personally benefit from them.

While the EFF had submitted that Ramaphosa acted unethically, the court disagreed, saying no rule of parliament had been mentioned to substantiate the breach.

The finding was set aside as “irrational”.

Suspicion of money laundering existing as a result of the R500,000 donation from Watson was not based on any evidence at all, the court found.

“We know that she had no evidence, even remotely, that money laundering was at play. She also failed to show a basic knowledge of the law before making serious allegations in her report. Had she known, she would not have arrived at this conclusion.

“The public protector made serious findings on unfounded assumptions. Her findings were not only irrational, but reckless.”

Her remedial action was also set aside.

Mkhwebane was ordered to pay punitive costs order in Ramaphosa’s successful challenge to her CR17 report, the NPA and parliament after her report was set aside.

READ NEXT: Your ultimate guide to the key issues in Ramaphosa vs Mkhwebane court battle

(Compiled by Vhahangwele Nemakonde)

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