Another domino falls with Bosasa ruling
• Key aspect is her insistence that she is not obliged to consult parties on remedial actions
The bruising judgment that invalidated public protector Busisiwe Mkhwebane’s politically damaging findings against President Cyril Ramaphosa will sound the death knell for her chances of defending several of her most controversial reports — if it stands.
The bruising judgment that invalidated public protector Busisiwe Mkhwebane’s politically damaging findings against President Cyril Ramaphosa will sound a death knell for her chances of defending several of her most controversial reports — if it stands.
That is because the high court in Pretoria found that Mkhwebane was legally obliged to provide Ramaphosa with a chance to respond to the far-reaching remedial action she ordered against him, after finding that the president had deliberately lied to parliament about a Bosasa donation to his CR17 campaign, and that the CR17 campaign could have been embroiled in money-laundering.
Ramaphosa — like public enterprises minister Pravin Gordhan, former Independent Police Investigative Directorate (Ipid) head Robert McBride and the JSE-listed horseracing and totalisator betting company Phumelela Gaming — argued in his court challenge to Mkhwebane’s report on his CR17 campaign that she had acted unlawfully in not granting him such a hearing.
The court agreed with the president, stating in its judgment delivered on Tuesday that he was entitled to such a hearing, given the “serious implications” of Mkhwebane’s directives.
Mkhwebane had “failed to comply with this obligation”, the court found. “In the circumstances, the remedial action she included in her report falls to be reviewed and set aside.”
That determination could set a very damaging precedent for Mkhwebane.
In her urgent court bid to halt the parliamentary process that could lead to her facing an impeachment inquiry, Mkhwebane disclosed that 62 of the 135 investigation reports she had issued were now being challenged in court. She won four such challenges, but the four she lost — including the devastating judgments on her Reserve Bank and Estina Dairy project reports — raised serious questions about her honesty, competence, impartiality and ability to understand the constitutional requirements of her position.
A critical aspect of the highprofile court cases she is now defending is her continued insistence that she is not legally obliged to consult affected parties on the remedial actions she issues against them and the equally adamant arguments of her opponents that she is.
The high court has now agreed that there is nothing in the Public Protector Act that requires Mkhwebane to grant affected parties hearings on her intended remedial actions.
But the court also found “that does not mean that the public protector may not be obliged to do so”.
“The facts may be such that in order to constitute compliance with a person’s constitutional right to just administrative action she should afford them such an opportunity.”
Mkhwebane could elect to challenge the court’s finding in favour of Ramaphosa, against which the EFF has already announced its intention to appeal.
But she faces the very real prospect of the Constitutional Court reinforcing the high court’s logic with regard to her remedial action obligations when it rules on her efforts to overturn an interdict granted in favour of Gordhan.
That interdict halted the implementation of her remedial action against him in relation to her disputed report on the socalled Sars rogue unit.
Advocate Wim Trengove, for Gordhan, argued that he should have been given a hearing by Mkhwebane in relation to the remedial action issued against him, which demanded that Ramaphosa “take appropriate disciplinary action” against him.
The president interpreted this as a directive that he fire the minister, and it can therefore be argued that this remedial action had potentially far-reaching implications for Gordhan.
It does not appear that Mkhwebane’s predecessor, Thuli Madonsela, consulted those affected by her reports on the remedial actions she intended to pursue.
But, importantly, Madonsela was never found to have unconstitutionally attempted to change the mandate of the Reserve Bank or failed the people of SA by failing to adequately investigate the alleged corruption linked to the Estina Dairy Farm scam.
Underlying the high court’s Ramaphosa ruling is arguably distrust; a distrust that has also manifest in Sars seeking an order that blocks Mkhwebane from subpoenaing confidential taxpayer records and has seen her legal opponents repeatedly accuse her of acting in bad faith.
This ruling is not just a potential legal vindication of some of those opponents; it is a legal mechanism designed to protect those that the public protector investigates — from her.
MKHWEBANE COULD ELECT TO CHALLENGE THE COURT’S FINDING ... AGAINST WHICH THE EFF HAS ALREADY ANNOUNCED ITS INTENTION TO APPEAL
UNDERLYING THE RULING IS ARGUABLY A DISTRUST THAT HAS SEEN OPPONENTS REPEATEDLY ACCUSE HER OF ACTING IN BAD FAITH