Mkhwebane: Judge must apologise
After running out of legal road, the public protector files a baffling complaint against the judge who found her CR17 findings were in bad faith
Public protector Busisiwe Mkhwebane has arguably added one misconstruction of a conduct code to another in filing a misconduct complaint against retired constitutional court justice Chris Jafta for his damning ruling on her findings against President Cyril Ramaphosa.
She has asked the Judicial Service Commission (JSC) to investigate Jafta and said she expected it to order him to reverse his decision and apologise to her in writing.
It is an exceptional step — and a last-ditch attempt to undo a humiliating court defeat after the constitutional court in February dismissed her application for rescission of its ruling.
Jafta wrote the court’s majority judgment in July last year in which it upheld the high court judgment that set aside her report on donations to Ramaphosa’s CR17 campaign for the leadership of the ANC.
It agreed that Ramaphosa was not required by the executive ethics code to disclose donations to the campaign and concurred that Mkhwebane exceeded her mandate and made grave errors in fact and law to arrive at the conclusion, among others, that he should be investigated for money-laundering.
But it went further than the high court to infer that she acted in bad faith by saying some of her errors defied characterisation as innocent, notably her finding that the president flouted the code by misleading parliament on a donation by African Global Operations, formerly Bosasa.
When pressed about the half a million rand donation by the political opposition in the parliament, Ramaphosa initially replied that it was a payment to his son, then later sent a correction to the legislature.
Jafta wrote that Mkhwebane sought to alter the wording of the code so as to place the president in the wrong, even if he did not know about the payment and did not intentionally give an incorrect answer.
“Instead of making the finding that the president did not wilfully mislead parliament, the public protector effectively changed the wording of paragraph 2.3(a) to include deliberate or inadvertent misleading of the legislature, so as to cover the situation where wilfulness was not established.
“It is inconceivable that the sole word used in the code ‘wilfully’ could be read to mean ‘inadvertent’. The words carry meanings that are mutually exclusive.”
She had, Jafta concluded, changed the words of the code to match the facts of the situation, and the severity of this and other errors was cause to question whether she understood what the law demanded of her when she investigated complaints.
In her eight-page complaint to the JSC, Mkhwebane quoted from these and other passages in the judgment to construe a case that Jafta breached the judicial code of conduct and violated her constitutional rights to dignity and reputation.
She said it was ironic that the court cautioned that the power of the public protector was such that her findings could ruin the careers or reputations of those investigated, arguing: “The findings of the majority court are just as damaging and detrimental to my career.”
She acknowledged that the commission was not empowered to consider a complaint arising out of a court order or judgment but said it had leeway to entertain hers because Jafta “intentionally sought to prejudice me”.
His use of “harsh language” placed him in breach of the requirement in the judicial code of conduct because it signalled that he was not manifestly impartial, as judges are required to be.
“When the element of impartiality is destroyed, through such remarks, it follows therefore that the element of bias is established,” she said, adding that Jafta’s language was unbecoming for a judge.
“The judge should be ordered to retract and render a formal apology to me.”
She added that since the apex court dismissed her rescission application, she had nowhere else to turn but the JSC.
“I have therefore exhausted all available court based remedies before laying this complaint. There is no other avenue for me to vindicate my violated constitutional rights.”
The complaint will now land on the desk of Chief Justice Raymond Zondo, who has to weigh its seriousness and how it should be handled. He could, if necessary, refer it to the Judicial Conduct Committee to consider whether it should become the subject of an investigation or be served before a tribunal.
Alison Tilley, the convenor of Judges Matter, said this was unlikely. “I think the public protector has misconstrued the complaints process in relation to misconduct. It is unlikely that this complaint will even pass the threshold of being considered,” she said.
The effect of the complaint could be political if Zondo dismisses it, as Mkhwebane’s supporters may resort to crying “judicial capture”.
She is involved in another legal standoff with Ramaphosa in which she seeks a high court interdict barring him from suspending her pending the outcome of parliament’s section 194 impeachment process against her.
The matter is tentatively set down for hearing next week.
In court papers, Mkhwebane claims that the president cannot exercise his constitutional power to suspend her because he is conflicted, or at risk of being so, as he has been or remains subject of numerous investigations by her office for serious and impeachable conduct.
Ramaphosa disputed this in his answering affidavit.
“In the present instance, there is no such conflict, in that there is no divide between my official responsibilities and my private interests.”
He said he had exercised his right to take her directives on review and had been vindicated by the courts. “That was the end of the matter.”