Mkhwebane hangs hopes in CR battle on a wrong footnote
Public protector Busisiwe Mkhwebane has applied to the Constitutional Court to reverse its scathing judgment that set aside as unlawful her report into President Cyril Ramaphosa’s CR17 campaign.
The crux of her argument is what she calls a “2007 amendment” to the executive ethics code, to which she says the highest court failed to give due weight.
Her position is that the “amendment” came into being in 2007 due to the way the ethics code was written (or rewritten, as it turned out) in the Ministerial Handbook published that year.
According to Mkhwebane, her predecessor Thuli Madonsela relied on this “amendment” in her court papers when she went to the Constitutional Court seeking to enforce her landmark Nkandla report, “Secure in Comfort”.
The handbook was even cited as a reference for the ethics code in a footnote in the Nkandla judgment.
Under the code, the president and cabinet ministers may not “wilfully” mislead parliament. But the 2007 Ministerial Handbook alters that clause to read that they may not “deliberately or inadvertently mislead” parliament. The difference is huge.
But all this went under the radar until 2019, when Mkhwebane released two of her most controversial reports: one dealing with public enterprises minister Pravin Gordhan and the South African Revenue Service (Sars) “rogue unit”, and the other on Ramaphosa’s campaign ahead of his election as president of the ANC.
Both reports were demolished by the courts. But in the bitterly fought litigation over them, the “amendment” suddenly became critical — as it is again in Mkhwebane’s current rescission application to the Constitutional Court.
In the judgment, justice Chris Jafta, writing for the majority, said Mkhwebane had in her report “changed the wording of the code so as to match with the facts”. He took a dim view — it was “unacceptable that the public protector did what no law authorised her to do”.
Mkhwebane says in her rescission application that this is a patent error. She says that because the Constitutional Court cited the handbook and not the actual ethics code in a footnote in the Nkandla judgment, she was “legally required” to apply it.
She says neither Jafta nor chief justice Mogoeng Mogoeng in his minority judgment addressed the question of which version of the code was applicable, which meant the court had departed from the principle that it was bound by its earlier judgments.
What she does not mention is that this very issue was the topic of heated dispute in the litigation over her Sars rogue unit report. In that case, Mkhwebane fought tooth and nail for her view that the “inadvertent” version of the ethics code should apply.
Under oath, Mkhwebane suggested that judge Sulet Potterill, who heard an interim application over the rogue unit report, had altered the wording of the code to omit “inadvertent”.
When the Gauteng High Court ruled on the matter in December last year, it dealt with this argument in no uncertain terms: “The code prohibits members of the executive from ‘wilfully’ misleading the legislature. The wording of the code is clear and does not contain a provision that an ‘innocent’ mistake constitutes a contravention of the executive ethics code.”
It called Mkhwebane’s accusation that Potterill deliberately omitted “inadvertently mislead” from the code “simply astonishing”.
In the challenge to the CR17 report she took a different tack.
When the matter was still before the high court, she admitted that her report moves between the two versions of the code. She also said: “I admit that the correct version of the code … provides that a member may not wilfully mislead the legislature.” But, she added: “I submit that the ‘error’ is immaterial”. Instead, it was concerning that Ramaphosa was coming with “technical issues”.
Now, she will have to persuade the highest court that, contrary to her own words under oath, the issue is not technical and is not immaterial.
The high court in the CR17 case delivered judgment in March last year. It too found, in ringing terms, that she had gotten the code wrong. But on appeal to the Constitutional Court, when she lists her grounds of appeal, she does not take specific issue with this finding.
Nor does she say anything about it in her written argument.
Yet in her rescission application, she insists that the “2007 code being the only applicable law was properly pleaded in the high court papers and subsequently raised in the papers before this honourable court” — referring to the exact paragraph where she actually admits the opposite.
The discrepancy between the ethics code as it is written, and the version in the handbook, could have led to a good-faith mistake by Mkhwebane when she first wrote the CR17 and Sars rogue unit reports.
But three courts and 13 judges, including at least seven from the Constitutional Court, have since told her she is wrong. She now seeks to hang an application for rescission — claiming it was the court and not her that got it wrong — on an erroneous footnote.