The Constitutional Court ruled on Thursday that Public Protector Busisiwe Mkhwebane should not have investigated the funding of President Cyril Ramaphosa’s CR17 ANC presidential campaign.
Mkhwebane lost her bid to overturn the North Gauteng High Court ruling declaring her 2019 report invalid, reviewing and setting it aside.
The Constitutional Court dismissed Mkhwebane’s appeal of the judgment of the full Bench of the high court in March last year.
Justice Chris Jafta was highly critical of Mkhwebane, finding that the public protector was wrong on the facts and the law with regard to the issue of whether Ramaphosa wilfully misled Parliament when he answered questions on Bosasa chief executive Gavin Watson’s R500 000 donation to his son Andile Ramaphosa.
Ramaphosa later changed his tune and explained that the donation was in fact to his CR17 campaign in 2017.
The full Bench of the high court – Judge-President Dunstan Mlambo and judges Keoagile Matojane and Raylene Keightley – court was right to set aside Mkhwebane’s findings, Justice Jafta said.
The apex court granted Mkhwebane, the EFF and the AmaBhungane Centre for Investigative Journalism’s leave to appeal.
Justice Jafta dismissed Mkhwebane and the EFF’s appeal, save to the extent of AmaBhungane’s challenge to the Executive Ethics Code, which the high court had dismissed.
“The dismissal of AmaBhungane’s claim for constitutional invalidity of the Executive Ethics Code is set aside. The matter is remitted to the high court for determination of that claim,” reads the judgment.
Ramaphosa has been ordered to pay AmaBhungane’s costs in the Constitutional Court. No order was made in respect to the costs of the other parties involved in the matter including Freedom Under Law.
”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) of the Executive Ethics Code include deliberately or inadvertently misleading of the legislature so as to cover the situation where wilfulness was not established,” Justice Jafta found.
“On the basis of a changed code the Public Protector concluded that the president ‘inadvertently and/or deliberately misled Parliament in that he should have allowed himself sufficient time to consider the question and make a well-informed response’.”
Justice Jafta said Mkhwebane was wrong to change the code and should not have conceivably thought that wilfully could mean inadvertently.
”These words are mutually exclusive. What she did went beyond the parameters of interpretation. The finding itself is framed in terms that are concerning. The president could not inadvertently and deliberately mislead Parliament because these two words cannot apply at the same time, it is either one or the other.“
Justice Jafta said Mkhwebane did not have the authority to investigate matters falling outside the complaints lodged by One SA Movement founder and former DA leader Mmusi Maimane and EFF deputy president Floyd Shivambu.
Political Bureau