Mkhwebane and the benefit of the doubt
Public protector Busisiwe Mkhwebane has cleared former Free State premier Ace Magashule of accusations that he twice misled the province’s legislature, in a report markedly different from her scathing assessment of President Cyril Ramaphosa ’ s alleged dishonesty to parliament over his campaign funding. /
Public protector Busisiwe Mkhwebane has cleared former Free State premier Ace Magashule of accusations that he had twice misled the province s legislature, in a report markedly different from her scathing assessment of President Cyril Ramaphosa s alleged dishonesty to parliament over his CR17 campaign funding.
Both Ramaphosa and Magashule were accused by DA members of violating the executive ethics code in their responses to questions posed to them in the National Assembly and the Free State legislature respectively.
Mkhwebane accepted Magashule s claims that he had not deliberately lied to the legislature in written responses to questions about his office s involvement in the funeral arrangements of health MEC Fundiswa Ngubentombi or his knowledge of a scathing forensic investigation into his office s irregular contract with a communications company. In Ramaphosa s case, in a report that was subsequently overturned by the high court in Pretoria, Mkhwebane found the president had misled parliament about a R500,000 donation to his CR17 campaign by corruption-accused facilities management company Bosasa.
After being asked about a R500,000 payment made to an account allegedly belonging to his son Andile, Ramaphosa said the money was linked to his son s consultancy contract with the company. Days later, Ramaphosa wrote to the National Assembly speaker to rectify that, clarifying that the money was, in fact, transferred into a CR17 campaign account.
He insisted he had made a genuine mistake, but Mkhwebane refused to accept that explanation. He deliberately misled parliament, in that he should have allowed himself sufficient time to research on a well-informed response,” she said about Ramaphosa.
High court judge Elias Matojane, in overturning Mkwebane s findings, said she did not only commit a material misdirection in her legal approach, but also reached an irrational and unlawful conclusion on the facts before her ”. Mkhwebane will challenge the ruling in the Constitutional Court in November.
Magashule referred to that high court ruling when he responded to a notice from Mkhwebane that he had been implicated in her investigation of the Ngubentombi complaint, in which he was accused of lying to the legislature about his offices involvement in the MEC s funeral arrangements and its commitment that the provincial government would refund money spent on the funeral by a local municipality.
The public protector s position taken in respect of the investigation against me bears similarity to the Bosasa CR17 investigation conducted by her office,” Magashule stated in a July 2020 letter, adding that the approach taken by the high court in that matter is dispositive of this investigation ”.
Magashule contended that the ruling given in favour of his political nemesis clearly supported his stance that there was no merit to the funeral arrangements complaint against him.
While some of these arrangements were done under the auspices of my (then) department, I had no knowledge of same as this was carried out by my officials,” Magashule stated.
In consequence, I would have had no subjective knowledge of the role my department may have played in the funeral arrangements, and consequently could have had no knowledge to intentionally mislead the legislature when my answer was given.”
While finding that Magashule s reply to questions about his office s involvement in Ngubentombi s funeral can be construed as vague and to an extent inadequate ”, Mkhwebane concluded that it cannot be regarded as evasive and/or misleading and cleared him. Mkhwebane s spokesperson
Oupa Segalwe told Business Day on Thursday that her decision was not a result of Magashule s comments on the Bosasa high court ruling.
Mkhwebane also cleared Magashule on Wednesday of accusations made by DA MP Roy Jankielsohn that he had lied to the Free State legislature when he denied knowledge of findings made about the office of the premier s allegedly irregular contract with a communications company.
The company, Letlaka Communications/Media, had reportedly been linked to a R48m Free State online website scandal. The Treasury initiated an independent forensic investigation into how it had come to be appointed as the preferred service provider to Magashule s office and other provincial departments.
That report, which was provided to Magashule s office in February 2014, found that the appointment did not adhere to regulations. It also found that the appointment of the premier s office as the implementing agent of that deal, on behalf of other provincial departments, was irregular.
More than a year later, and in response to a question from Jankielsohn, Magashule appeared to deny knowledge of that report and recommendations by then finance minister Pravin Gordhan that appropriate action be taken against officials implicated in financial misconduct.
In response to questions from Mkhwebane, Magashule claimed that, because there were three versions of the report in question, he was trying to establish which one Jankielsohn was referring to. He denied that he had disavowed knowledge of the report.
Mkhwebane accepted that explanation.
Sandile