Protector to be heard by top court

Beleaguered public protector Busisiwe Mkhwebane has persuaded the Constitutional Court to hear her challenges to two of the most damaging rulings given against her.

The two judgments are the invalidation of Mkhwebane’s investigation into President Cyril Ramaphosa’s campaign finances and the judgment that denied her the right to subpoena former president Jacob Zuma’s tax records.

Ramaphosa had previously criticised Mkhwebane’s attempt to defend her report into his CR17 campaign funding in the country’s highest court as doomed to failure, and said it should be rejected out of hand.

Despite that, SA’s highest court has issued directions that the Zuma tax case be heard on September 3 and the Ramaphosa matter a few weeks later, on September 29 — more than a month after Mkhwebane is scheduled to fight for a court interdict that will halt a mooted inquiry into her fitness to hold office from proceeding.

Both the Ramaphosa and Zuma Sars rulings, if they stand, raise serious questions about Mkhwebane’s grasp of the law, understanding of evidence, impartiality and integrity, and will provide powerful ammunition for those who contend she must be removed from her powerful position as SA’s watchdog against government abuses.

In the Zuma case, judge Peter Mabuse ordered that the public protector personally pay 15% of Sars commissioner Edward Kieswetter’s legal costs in challenging her attempt to subpoena Zuma’s tax information.

Mkhwebane had sought that information as part of her probe into whether Zuma had received a salary from a security company in the first few months of his term in office.

Mkhwebane has told the Constitutional Court that her fight to subpoena Zuma’s tax records from Sars is about obtaining legal clarity about the extent of her powers.

Kieswetter, however, maintains that Mkhwebane’s insistence that she can access whatever taxpayer information she wants makes it apparent that she is acting irrationally and “in excess of her powers”.

Kieswetter contends that, given that she continued to threaten criminal sanctions against him personally if he did not give her Zuma’s tax information, and did so against independent legal advice, it can be inferred that she was pursuing “extraneous or ulterior objectives”.

In the Ramaphosa matter, Mkhwebane went straight to the Constitutional Court after three high court judges decimated her report into the president’s election campaign funding on the basis that, among other things, it was legally and factually flawed.

She insists the judgment, if it stands, will effectively constrain her office’s ability to hold powerful members of the executive to account.

The high court ruled that there was no basis for Mkhwebane to find that Ramaphosa had deliberately lied to parliament about a R500,000 donation made by late Bosasa CEO Gavin Watson into one of his CR17 campaign account.

Ramaphosa initially stated that the payment was in relation to a consultancy agreement between African Global Operations (formerly Bosasa) and his son, Andile Ramaphosa — following a question about a Bosasa payment made to his son by then-DA leader Mmusi Maimane.

The court also rubbished Mkhwebane’s finding that the CR17 campaign accounts may be implicated in money-laundering, finding,that she had used the wrong law to make this finding and had no factual basis on which to back it up.

The Constitutional Court’s decisions to allow Mkhwebane access to appeal against the Zuma and Ramaphosa judgments come as the protector prepares to fight for an interdict stopping parliament from proceeding with an inquiry into her fitness to hold office.

In that case, Mkhwebane seeks to interdict National Assembly speaker Thandi Modise from proceeding with the recently formulated process for the removal of a Chapter 9 institution until she has launched a major legal challenge to the rules governing that process.

Judge president John Hlophe has set that interdict application, which is opposed by Modise, for August 12-13.

The dispute between them has become ugly, with both women now seeking personal costs orders against each other.

In court papers, Mkhwebane compared the parliamentary rules that will govern any potential inquiry into her fitness to hold office to the “Sobukwe clause ”— the apartheid-era legislation used to arbitrarily extend the imprisonment of PAC leader Robert Sobukwe.

Modise in turn wants Mkhwebane to face a personal costs order for claiming that the speaker had an “ulterior purpose” for approving a DA motion that could result in her impeachment.