‘I was just saying there’s evidence:’ Mkhwebane denies overstepping mandate in CR17 probe

Suspended Public Protector Busisiwe Mkhwebane has maintained her view that she only made a referral to the authorities to conduct an investigation into President Cyril Ramaphosa’s ANC presidential campaign (CR17).

Mkhwebane returned to the hot seat at the Section 194 inquiry into her fitness to hold office on Tuesday after she was booked off sick last week.

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The public protector continued with her testimony regarding the CR17 campaign during Tuesday’s proceedings, where she argued she did not overstep her mandate by issuing remedial actions for the National Prosecuting Authority (NPA), former National Assembly Speaker Thandi Modise, and the national commissioner of the South African Police Service (Saps) in her 2019 report.

In the CR17 report, Mkhwebane ordered National Director of Public Prosecutions (NDPP) advocate Shamila Batohi and the police commissioner to investigate possible money laundering around Ramaphosa’s campaign and report back to her with an implementation within 30 days.

The public protector also ordered Modise to instruct Parliament’s Ethics Committee to investigate Ramaphosa for failing to declare the donations to his campaign.

‘I was not finding any person guilty’

On Tuesday, Mkhwebane maintained that she did not have the jurisdiction to investigate criminal conduct, like money laundering, hence the referral to the authorities.

She argued that her finding that there was prima facie evidence of money laundering was based on the CR17 bank statements and the money trail of deceased Bosasa boss Gavin Watson’s R500 000 donation to the president’s campaign.

“We couldn’t just ignore the fact that the money was paid into an account and it moved from one account to another,” she said.

READ MORE: Mkhwebane says her troubles started when she went after ‘the untouchables’

“I was not finding any person guilty, I was just saying there is evidence, and NPA, this is your constitutional mandate, can you look into the matter?”

The public protector said her referral was not different to the actions of her predecessor Thuli Madonsela, when she ordered that then Chief Justice Mogoeng Mogoeng appoint the judge who would preside over the State Capture Commission.

“That creates a lot of confusion in how we operate as an institution,” Mkhwebane said.

Watch the proceedings below:

‘I was accused wrongfully’

Later in the proceedings, Mkhwebane batted away the suggestion that she changed the Executive Ethics Code to align with her findings against Ramaphosa in the CR17 report.

The Constitutional Court (ConCourt), in July 2021, ruled 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 she had found in her report.

The ConCourt judgment also found that the public protector altered the words of the Executive Ethics Code to justify her finding that Ramaphosa unethically misled Parliament.

The minority judgment, penned by former Chief Justice Mogoeng Mogoeng, concluded that Ramaphosa should have disclosed his CR17 donations.

RELATED: Mkhwebane cries ‘women abuse’ against ConCourt judgments

Responding to Mpofu’s questions on the matter, Mkhwebane said: “My heart was so sore or my heart bled when I read those paragraphs… I’m blamed that I’ve changed the code.”

She told the inquiry that she relied on the court judgments when her office was investigating CR17.

“We rely on what the constitutional provisions are saying. The facts before us. I never changed the quote, and I was accused wrongfully,” Mkhwebane continued.

Mkhwebane previously argued that the ConCourt, in delivering its judgment, had relied on the Executive Ethics Code published in 2000, which used the word “wilfully”.

She pointed out that she had relied on the code published in 2007, which used “deliberately and inadvertently” instead.

Mkhwebane maintained the same argument on Tuesday.

“I didn’t invent my own words,” said Mkhwebane.