President accuses the public protector of perjury
In what would be an unprecedented move, President Cyril Ramaphosa wants the National Prosecuting Authority (NPA) to investigate public protector Busisiwe Mkhwebane’s conduct in compiling the report that accused him of deliberately misleading parliament over a donation from disgraced firm Bosasa.
Ramaphosa filed papers in the Constitutional Court on Monday urging it to dismiss with personal costs Mkhwebane’s attempt to have it rescind a judgment against her over the report. In addition to rejecting Mkhwebane’s bid, the president’s legal team accuse her of committing perjury and want the highest court to refer her to the NPA.
If the personal costs order were granted, Mkhwebane would have to pay — out of her own pocket — her and her opponent’s legal fees, instead of being bankrolled by the state in her official capacity.
Since replacing Thuli Madonsela in 2016, Mkhwebane has lost various court cases after reports that were successfully challenged, including by the Reserve Bank and public enterprises minister Pravin Gordhan.
Judges questioned her objectivity and competence, and she has been accused of inserting her office in ANC factional fights.
If the court were to grant Ramaphosa’s plea, it would prove a remarkable moment in the Constitutional Court’s history and that of the public protector’s office.
Mkhwebane is subject to an impeachment process in parliament, and an independent panel chaired by retired Constitutional Court judge Bess Nkabinde found she had a case to answer for misconduct and incompetence.
In submissions filed on Monday, Ramaphosa — who is pushing back after Mkhwebane filed a rescission bid in July after the apex court rejected her appeal against a high court ruling to set aside her report on funding for the campaign that led to his becoming ANC president in 2017 — asked the court “to refer this judgment to the national director of public prosecutions for investigation of the conduct of the public protector”.
Early last month, the apex court found in Ramaphosa’s favour when it determined that he did not wilfully mislead parliament in an answer to a question about a R500,000 donation from then Bosasa CEO Gavin Watson.
This made Mkhwebane’s report, which found otherwise, moot. The court also found that Ramaphosa did not personally benefit from donations to the campaign.
In the rescission application, Mkhwebane said her tactic was not a “back-door” attempt to appeal against the judgment since the Constitutional Court, as the court of last instance, had the final say. Rather, she argued, the decision must be rescinded or reconsidered.
Ramaphosa called the application “flawed”.
A court can rescind an order if its judgment was filed erroneously in the absence of an affected party, where there is an ambiguity or patent error or omission that affects the out
come and where there was a common mistake to all parties.
Ramaphosa sets out what he views as Mkhwebane’s inconsistent and contradictory references to the executive ethics code.
Using these references and parliament’s rules, Mkhwebane found against both Ramaphosa and Gordhan in separate reports. Both reports have been the subject of legal dispute, and Ramaphosa highlights the similarities in what he argues is Mkhwebane’s frequent dishonesty.
“She committed perjury by filing the two irreconcilable affidavits in her case against the president on November 14 2019 and in her case against minister Gordhan on November 16 2019,” reads the affidavit.
Ramaphosa said that Mkhwebane’s rescission application is “manifestly dishonest” and later he asked the court to refer her to the NPA.
IF THE COURT WERE TO GRANT RAMAPHOSA ’ S PLEA, IT WOULD PROVE A REMARKABLE MOMENT IN THE COURT’S HISTORY