Presidency welcomes judgment in Bosasa matter

● Court scathing about protector’s ‘irrational and unlawful’ CR17 donation finding

The presidency has welcomed the Pretoria high court ruling setting aside public protector Busisiwe Mkhwebane’s findings that President Cyril Ramaphosa deliberately misled parliament over the R500,000 donation he received from Bosasa.

Judge Elias Matojane, in a scathing judgment delivered yesterday on behalf of a full bench of the high court, said: “We find [Mkhwebane] did not only commit a material misdirection in her legal approach [to the issue of misleading parliament], but also reached an irrational and unlawful conclusion on the facts before her.”

Ramaphosa had asked the court to review and set aside the report and remedial action based on Mkhwebane’s investigation.

The matter was heard in early February.

Presidency spokesperson Khusela Diko said: “The court reaffirmed the president’s assertion that there was no factual basis for the public protector’s finding that the president misled parliament in relation to a donation made to the CR17 campaign from Mr Gavin Watson of African Global Operations.”

The campaign funded his bid to become president of the ANC.

Diko said the court found further that the public protector had no jurisdiction to investigate the CR17 campaign, that the president was not obliged to disclose the donations received by the CR17 campaign, and that the public protector had no foundation in fact and in law to arrive at a conclusion that the president had involved himself in unlawful activities.

“The presidency welcomes the settlement of this matter and reaffirms its commitment to honest and effective governance,” she said.

The court battle included

Ramaphosa, National Assembly speaker Thandi Modise and national director of public prosecutions (NDPP) Shamila Batohi.

The court was also scathing about Mkhwebane’s finding that there was prima facie evidence of money laundering, criticising her knowledge of the relevant law, as she had referred to the wrong legislation in her report.

The court held that she had no evidence to substantiate her finding in relation to money laundering and that, in dealing with this issue, she had completely failed to properly analyse the facts and evidence at her disposal.

It found that Mkhwebane had showed a complete lack of basic knowledge of the law in this regard.

The finding with regard to money laundering was reviewed and set aside.

Mkhwebane was ordered to pay the president’s costs on a punitive scale.

She also has to pay the NDPP’s and speaker’s costs, but not on a punitive scale.

Speaking immediately after the court judgment, the public protector’s spokesperson, Oupa Segalwe, said it would not be advisable for the public protector to offer a knee-jerk reaction.

“It will be proper for her to rally her legal team and study the ruling, understand it, especially the reasoning behind what the full bench said.

“At that point, she will be in a position to opine substantively on the judgment as well as indicate what the next step for her will be,” Segalwe said.

He said Mkhwebane thought her legal team had put forward a strong case.

“She was not anticipating this kind of a ruling.

“It is a disappointing judgment,” Segalwe said.

He said Mkhwebane respected the judiciary as well as the judiciary’s authority to make this kind of ruling.

“But, of course, respecting a ruling does not mean you must agree with it.

“You can hold a different view and you have all these other avenues to explore,” Segalwe said.

Modise, who limited her application to the remedial action and monitoring mechanisms directed at the National Assembly speaker, also welcomed the judgment.

Modise had asked the court to review, declare invalid and set aside the remedial action and monitoring measures on the basis that they were unlawful.

Parliament said in a statement that the remedial action by the public protector was founded on an erroneous comprehension of the ethical code of conduct and disclosure of members’ interests, and its scope of application and, thus, made its implementation impractical.

“The court agreed the speaker did not have the power to instruct the president to disclose in the register of members’ interests the donations received by the CR17 campaign as the code primarily applied to serving MPs.

“President Ramaphosa ceased to be a member when he was elected president in February 2018,” it said.