Mkhwebane has an ace up her sleeve, guns for ConCourt judge over CR17 ruling

Despite her many defeats in court regarding President Cyril Ramaphosa’s 2017 ANC presidential campaign, it seems like Public Protector Busisiwe Mkhwebane is not backing down.

According to City Press, Mkhwebane has approached the Judicial Service Commission (JSC) with a complaint of misconduct against retired Constitutional Court (ConCourt) Justice Chris Jafta in relation the CR17 campaign.

Leave to appeal judgment

The ConCourt, in July last year, dismissed Mkhwebane’s application for leave to appeal a high court ruling, which set aside her report into the CR17 campaign.

The majority judgment, penned by Jafta, held that no law had authorised Mkhwebane to investigate the private affairs of political parties, and concluded Ramaphosa did not deliberately mislead Parliament about donations, which is in contrast to what the Mkhwebane had found in her report.

Jafta also ruled that Mkhwebane changed the Executive Ethics Code to align with her findings in her report.

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“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 at the time.

Mkhwebane went to the ConCourt after her report into the CR17 campaign was set aside in March 2020 by the Pretoria High Court.

The public protector released the report on the CR17 campaign in July 2019.

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

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

‘Harsh language’

Mkhwebane has since accused Jafta of breaching the Code of Judicial Conduct for being biased in his findings.

“It is my strong and humble submission that the complaint is justified on the basis that the majority court, particularly Jafta J, intentionally sought to prejudice me, was patently impartial and, in his erroneous judgment, used harsh language, a ground which breaches the code of conduct of the judges,” she stated in her affidavit filed with the JSC on Monday.

In the notes of the Code of Judicial Conduct’s Article 9 states that: “Harsh language should be avoided if possible, and a judge may not, under the guise of performing judicial functions, make defamatory or derogatory statements actuated by personal spite, ill will, or improper, unlawful or ulterior motives.”

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

The public protector has claimed that Jafta’s language when delivering the judgment was “not in accordance with the commonly accepted decorum; it is harsh language which is disparaging, derogatory and was actuated by personal spite”.

“This misconduct is an extreme violation of the judge’s primary duty to act manifestly impartially, as prescribed by the code.

“The conduct of Jafta J amounts to a gross violation of the core values, which prescribe a standard that judges must uphold when executing their duties,” she further stated.

Two codes

Mkhwebane also argued that Jafta’s “choice of words” in saying she had changed the wording of the code were “false and erroneous”.

The Public Protector once again insisted that the ConCourt in delivering its judgment had relied on the Executive Ethics Code published in 2000, which used the word “wilfully”, while she had relied on the code published in 2007, which used “deliberately and inadvertently” instead.

She stated that the ConCourt itself violated the Constitution and the principles of legal precedence by failing to recognise the same 2007 Executive Ethics Code that was used when her predecessor, Advocate Thuli Madonsela, made findings against then president Jacob Zuma in her Nkandla investigation.

Rescission

Mkhwebane, meanwhile, also argued that the ConCourt “missed” an opportunity to correct its previous error in her rescission application.

“Unfortunately, the application was dismissed without a hearing,” she said in her affidavit.

The ConCourt dismissed Mkhwebane’s application with costs last month “as no case has been made out for rescission”.

ALSO READ: ANC shields Ramaphosa amid Mkhwebane probe over leaked audio

Since she has exhausted all available court-based remedies, Mkhwebane has asked the JSC step in.

“Without imposing and prescribing the desired outcome, it is my considered view that the judge should be ordered to retract and render a formal apology to me. This is with due respect to the independent powers and functions of the JSC,” stated Mkhwebane.