Court sets aside protector’s findings
Mkhwebane slapped with triple personal punitive costs, as president welcomes judgment
THE North Gauteng High Court, Pretoria, yesterday in scathing terms set aside all findings made by Public Protector Busisiwe Mkhwebane against President Cyril Ramaphosa relating to donations to his campaign for the leadership of the ANC in 2017.
A full bench of high court judges held that Mkhwebane had erred in law, and exceeded the bounds of her mandate in an investigation that found Ramaphosa had misled Parliament about a R500 000 donation, and concluding that there were prima facie indications of money laundering and state capture in in-flows to the campaign’s coffers.
The court made a punitive costs order against Mkhwebane to signal its displeasure, ordering her to pay not only the president’s legal fees, but those of the Speaker of Parliament and the National Director of Public Prosecutions, both of whom had challenged her instructions on remedial action against Ramaphosa.
The court said there was no indication that public money was involved in the CR17 funding matter, therefore the matter fell outside the mandate of Mkhwebane’s office. It added that her confusion on points of law such as these permeated her entire probe and report against the president, and it found that she had flouted her obligation to investigate without bias.
“She breached her duty to approach every investigation with an open mind,” the court concluded.
On her failure to interpret various laws correctly, the court said Mkhwebane’s attempt to explain her confusion about which version of the executive ethics code she relied upon to find that Ramaphosa had misled Parliament displayed an inability to grasp the fundamental legal concepts at the heart of the matter.
Turning to the issue of money laundering, it said the allegations underpinning her findings appeared to be that Ramaphosa set up his campaign account with the aim of laundering bribes received from donors in return for political favours.
She had contended that there was prima facie suspicion of money laundering with regard to a R500 000 donation from African Global Operations, linked to the late Gavin Watson, but the court said that there was no evidence to support her findings or her pursuit of this line of inquiry.
Her confusion here was again twofold. In fact, there was no proof that the money had passed through various intermediaries, and in law, she had sought to apply an act relating to corruption, instead of that pertaining to money laundering.
The court stressed that her adverse finding against Ramaphosa in this instance related not to his official but his personal capacity, and said while it would have serious consequences for any individual, it had the added dimension in this case that such a suspicion against the president could perturb an entire country.
“The public protector displayed anything but an open mind when she made serious findings on unfounded assumptions. Her findings were not only irrational, but reckless,” the court said. Mkhwebane had made matters worse by refusing Ramaphosa a hearing on her preliminary findings.
“It is unclear why she failed to comply with one of the fundamental principles of natural justice,” the judges said. The court was equally scathing of Mkhwebane’s conclusion that the donation from African Global Operations and others created a legitimate concern of state capture, given the absence of any facts to support it.
It set aside all remedial action Mkhwebane prescribed and concluded that her instructions to both the Speaker of Parliament and the National Director of Public Prosecutions on how to proceed against Ramaphosa had strayed beyond the powers of her office.
She sought to circumvent the discretionary powers of the Speaker and undermine the independence of the National Prosecuting Authority (NPA), the court said.
“Her remedial action displays in our view a complete lack of understanding of the limits of her powers in relation to matters relating to the NPA,” the court said, adding: “She displayed a clear lack of understanding of the meaning of prosecutorial independence.”
Judge President Dunstan Mlambo warned that the public protector risked undermining the very reason for the existence of her office, because she could “lose the trust of the citizens to whom she has been appointed protector”, by failing to apply the law correctly and considering her findings carefully.
The ruling comes a week before the Cape Town High Court is to hear an application by Mkhwebane to halt a parliamentary probe into her fitness to hold office.
Ramaphosa’s office welcomed the judgment.