Public Protector Busisiwe Mkhwebane’s legal counsel had to field a string of questions from the full bench of the Constitutional Court on Thursday where she was seeking to overturn the setting aside of her report into President Cyril Ramaphosa’s CR17 presidential campaign.
Mkhwebane made a direct application for leave to appeal the judgment of the North Gauteng High Court which reviewed, declared invalid and set aside her CR17/Bosasa donation investigation report.
The high court found Mkhwebane had acted unlawfully when exercising her powers, the probe into the CR17 campaign fell outside her field of competence and powers, and her findings were invalid.
Advocate Muzi Sikhakhane SC, for Mkhwebane said the high court ruling that Mkhwebane lacked jurisdiction was incorrect as Section 181 and 182 of the Constitution permitted her to conduct the probe as part of strengthening constitutional democracy.
Sikhakhane disputed the high court ruling that the millions of rand pumped into Ramaphosa’s ANC election campaign were a private matter.
“Section 96(2) b of the Constitution obliges the deputy president, as Ramaphosa then was, not to act in any way that is inconsistent with their office or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.
“When the high court says there is no jurisdiction to investigate donations to a deputy president who seeks to ascend to a position of power within his party so that he can be president of the country, because public money was not used… of course the private party that bribes me uses private money.
“I am not suggesting that it was the bribe,” Sikhakhane said.
Sikhakhane argued Mkhwebane would not be able to investigate matters where private companies sought favour with government functionaries using money.
Mkhwebane was also found to have erred by not affording Ramaphosa a hearing before she made a recommendation he be investigated by the National Prosecuting Authority for money laundering relating to the campaign.
Justice Mbuyiseli Madlanga questioned Mkhwebane’s reasons for not affording Ramaphosa a hearing before issuing her remedial action despite him being entitled to it.
Sikhakhane, however, argued Mkhwebane had at least sent Ramaphosa the preliminary report to alert him of the possible adverse findings against him.
Mkhwebane’s authority to instruct other state institutions, as she did with the NPA and the Speaker of the National Assembly in her report, also came under scrutiny.
Sikhakhane, however, downplayed the matter, adding Mkhwebane did not take away other state institutions’ right to determine what they could or could not do in terms of her recommendation.
Chief Justice Mogoeng Mogoeng, however, pointed out to Sikhakhane that the apex court had ruled Mkhwebane’s remedial action was binding and anyone who did not want to implement it would have to approach a court of law to set it aside.
Sikhakhane was forced to accept Mkhwebane had no authority to instruct other independent institutions what to do, even though she was allowed to refer matters to them for consideration.
“It is true that she can’t direct in such great detail what it is they must do in conducting their investigations,” he said.
Sikhakhane said this mistake by Mkhwebane did not mean her entire remedial action had to be declared unlawful as the high court did.
The justices quizzed Mkhwebane’s defence counsel why she said Ramaphosa might have “deliberately or inadvertently” misled Parliament when he answered the R500 000 Bosasa CR17 donation question but still found him to have wilfully lied and broken the Executive Members’ Ethics Act.
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