Mkhwebane ‘may have gone too far’ in CR17 report

Public Protector Busisiwe Mkhwebane’s legal team has conceded she “may have gone further than she should have” in her contentious CR17 report.

During a two-hour grilling from a full bench of the Constitutional Court, advocate Muzi Sikhakhane – for the public protector – yesterday acknowledged it was “possible in the drafting, she may have gone further than she should have”.

“I’m not submitting each and every aspect of this report is perfect,” he said. But Sikhakhane argued it still did not mean it should be set aside in its entirety.

The report was released last July and focused, in part, on a R500 000 donation made by Gavin Watson – the late former Bosasa chief executive – towards President Cyril Ramaphosa’s CR17 campaign for the ANC’s top spot.

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It found he breached the executive ethics code by not disclosing the donation and misled parliament, and that there was “merit” to the suspicion of money laundering.

Ramaphosa had the report reviewed and set aside by the High Court in Pretoria in March, but now Mkhwebane has approached the Constitutional Court with an application for leave to appeal, in a bid to salvage it.

Her case looked to be on shaky ground when it came before the justices yesterday, though, with Sikhakhane put through his paces and questions around his client’s powers to direct organs of state raised by Justice Zukisa Tshiqi.

In the high court, Mkhwebane was criticised for having referred her investigation to National Director of Public Prosecutions (NDPP) Shamila Batohi with the instruction that she investigate potential money laundering.

“I’m quite happy about the referral, but can she go further and direct?” Tshiqi asked yesterday, pointing to correspondence between the public protector’s office and the NDPP in which the former insisted “the public protector can direct organs of state to take certain steps, and even direct how they should be taken”.

Sikhakhane eventually conceded Mkhwebane could not direct “in such great detail” how the NDPP conducted investigations.

He was, however, adamant this did not render her remedial action unlawful or irrational in its entirety.

He was also quizzed about what the high court found was Mkhwebane’s unlawful failure to afford Ramaphosa a hearing before finalising her report – despite a plea from his lawyers – and on her findings that he had misled parliament.

– bernadettew@citizen.co.za

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