Ramaphosa vs Mkhwebane in court: A detailed breakdown

The Constitutional Court (ConCourt) has dismissed Public Protector Busisiwe Mkhwebane’s application for leave to appeal the high court decision to set aside her report into President Cyril Ramaphosa’s 2017 ANC presidential election (CR17) campaign.

Mkhwebane approached the apex court with the application after her report into the CR17 campaign was set aside in March last year by the Gauteng High Court in Pretoria.

Background

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

Ramaphosa said he was aware of the payment. However, days later the President sent a letter to the speaker of parliament, correcting his oral reply, in which he said the payment in fact was a donation to the CR17 campaign.

ALSO READ: Mkhwebane ‘didn’t have authority to investigate CR17 campaign’

The matter  prompted the DA to ask the Public Protector to look into the payment and its concerns about 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.

In the report, the Public Protector found Ramaphosa had deliberately misled Parliament and recommended an investigation by the police into possible money laundering.

Mkhwebane has unequivocally stood by her report and its findings, but there were a number of intervening parties and respondents, each with their own objectives.

Ramaphosa ‘didn’t deliberately mislead Parliament’

On Thursday, Justice Chris Jafta delivered the majority ConCourt judgment on the Public Protector’s report, which ruled that Ramaphosa did not deliberately mislead Parliament about donations.

Justice Jafta said Mkhwebane got the facts and law wrong as she had changed the Executive Ethics Code to align with the findings in her report.

READ MORE: Mogoeng says Ramaphosa should have disclosed CR17 campaign donors

“The Public Protector was wrong to change the code. She could not have conceivably thought that willfully could mean inadvertent…. these words are mutually exclusive.

“What she did went well beyond the parameters of interpretation, but the finding itself is framed in terms that are concerning. The President could not deliberately and inadvertently mislead Parliament because these two cannot apply at the same time…. it is either one or the other.

“Therefore, the Public Protector was wrong on the facts and the law with regards to the issue whether the president had willfully misled Parliament and the high court was right to set aside her finding,” the judge said.

Ramaphosa ‘didn’t personally benefit from donations’

Justice Jafta ruled there was no evidence that Ramaphosa personally benefitted from donations made to the CR17 campaign.

“There was no evidence supporting this finding. Instead the evidence showed that African Global Operations [Bosasa] donated R500,000 to the CR17 campaign.

“This cannot be interpreted that the President used his position to enrich himself or his son through African Global Operations. Both the President and his son knew nothing about the donation,” the judge said.

Ramaphosa wasn’t obliged to disclose donations

The majority judgment also held that Ramaphosa was not obliged to disclose the donations received by the CR17 campaign as he did not personally benefit from them.

The judge further said that Mkhwebane did not have the authority to investigate whether the President personally benefitted from donations made to the CR17 campaign, as it was not part of the complaints she was investigating.

“Once more the evidence on record showed that the President did not personally benefit from the donations made to the CR17 campaign.

ALSO READ: CR17 campaign was never formed to promote illegality, says manager

“The Public Protector may have not believed it, but she did not reject such evidence. Consequently, the master must have been decided on the basis of that evidence.

“But more importantly, both these issues did not fall part of any of the complaints sent to the Public Protector. Therefore she did not have the authority to investigate matters outside of the complaints. This is a requirement of Section 3 and 4 of the [Members] Act that empowers the Public Protector to investigate violations of the Code,” he said.

Mkhwebane ‘didn’t have powers to investigate’

On the issue of the competence to investigate the CR17 campaign, Jafta said the majority judgment held that no law authorised Mkhwebane to investigate the affairs of the campaign.

“There is no merit in the argument advanced by [the Public Protector and the EFF]. Both the Constitution and the Public Protector Act do not empower the Public Protector to investigate private affairs of political parties. Political parties do not perform a public function or exercise a public power as it is a private affair not a state affair,” he said.

The EFF had intervened in support of Mkhwebane, with wide-ranging submissions over Ramaphosa’s conduct and alleged lack of candour.

The EFF’s Floyd Shivambu was the second applicant in the case.

Money-laundering suspicion

On the issue of money laundering, the judge said the evidence in Mkhwebane’s report did not support the finding that Ramaphosa had involved himself in illegal activities sufficient to evoke a suspicion of money laundering.

“The Public Protector found that the donation from the CEO of African Global Operations passed through several intermediaries and this was a suspicion of money laundering.

“[However], evidence placed before hand dispel all of this. The donation only passed through one account and not through several intermediaries.”

Furthermore, the majority judgment held that Mkhwebane did not have the authority to investigate money laundering claims.

‘Audi principle’

Justice Jafta said the ConCourt held that the application of the audi principle did not depend on whether the exercise of power constituted administrative action.

The judge also said the majority judgment agreed with the high court that the Public Protector’s failure to afford Ramaphosa a hearing before the decision on remedial action was made, was fatal to the validity of that remedial action.

READ MORE: Ramaphosa’s defence questions Mkhwebane’s ‘lack of impartiality’ following ruling

“The President complained that the interim report, in which he was afforded to make representations, did not include the remedial action. He contended he was entitled to a hearing before the decision on remedial action was taken.

“The Public Protector accounted this by submitting that Section 7 (9) of the Public Protector Act obliges her to afford the affected persons a hearing only during an investigation.

“On the proper reading of Section 7 (9), we concluded that a person against whom the remedial action is taken is entitled to be heard on the proposed remedial action.”

Remedial actions

The judge also said the court ruled that Mkhwebane did not have the authority to make remedial actions against National Assembly Speaker Thandi Modise, the National Director of Public Prosecutions (NDPP) advocate Shamila Batohi and the national commissioner of police.

Modise, who was the second respondent in the case, previously asked the Gauteng High Court in Pretoria to set aside only certain remedial actions in Mkhwebane’s report.

This related to Mkhwebane instructing Parliament to task its ethics committee to investigate Ramaphosa for failing to declare the donations.

Meanwhile, NDPP advocate Batohi opposed Mkhwebane’s remedial action, which placed her under orders from the Public Protector to investigate money laundering with the national commissioner of police and report back to her within 30 days on how she planned to do so.

Both Batohi and Modise argued that Mkhwebane overstepped her authority by instructing them how and when to do their work.

AmaBhungane’s challenge to the Code

Justice Jafta said the majority judgment held that the high court erred in concluding that AmaBhungane’s challenge to the Executive Ethics Code was not properly before it and the court should have considered the merits of that claim.

AmaBhungane, the third applicant, intervened as in its view if the court found that the Code did not place an obligation on a member of Parliament to declare private donations, the language in the code was unconstitutionally vague.

AmaBhungane said in its court papers that it was not getting involved in the fight between Ramaphosa and Mkhwebane.

Outcomes

• Mkhwebane’s appeal was dismissed.
• AmaBhungane’s claim for constitutional invalidity of the Executive Ethics Code was set aside. However, the matter was remitted to the high court for determination of that claim.
• Ramaphosa ordered to pay the costs of AmaBhungane’s case in the ConCourt, including costs of two counsel.
• No order as to costs was made in respect of the other parties, including Freedom Under Law.