Public Protector dealt a crushing ConCourt blow

The Constitutional Court dealt Public Protector Busisiwe Mkhwebane a crushing blow in agreeing with the North Gauteng High Court judgment of March 2020, which held that she had acted unlawfully in exercising her powers in the manner she did, and that her investigation into President Cyril Ramaphosa’s 2017 ‘CR17’ election campaign donations fell outside her field of competence.

The high court had rendered the Public Protector Report of July 19, 2019, its findings, and its remedial orders invalid and set aside.

Incompetence, errors, and outrageous behaviour

The judgment, read by Justice Chris Jafta, was laced with adverse findings on Mkhwebane’s competence, errors and outrageous behaviour:

• She unlawfully changed the wording of the Executives Ethics Code to find against Ramaphosa, and used this incorrect wording in her report. She thus measured the president against a standard she herself had created.

• She unlawfully expanded the scope of a complaint submitted to her.

• Jafta expressed concern as to the “quality of her reasoning leading up to various findings”.

• Other adverse remarks included that her findings were “fatally defective”, and that she was “plainly not authorised to investigate the issue”.

• Further, she disregarded evidence, reached a conclusion with no factual evidence, and misconstrued the empowering legislation.

• She made “weighty” errors – “some of which defy any characterisation of an innocent mistake”.

• Jafta remarked that “the nature and number of errors committed” called into question her “capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the Code”.

• She acted outside her authority, and attempted to give the Speaker of the House and the Joint Committee orders. 

Did Ramaphosa mislead parliament?

The Constitutional Court found that the Public Protector unlawfully changed the wording in the Executives Ethics Code by adding “deliberate and inadvertent misleading of the Legislature”, so that she could find against the president.

The Constitutional Court agreed with the high court’s ruling that the Public Protector’s finding against the president was based on a material error of law.

Ramaphosa is vindicated, he did not mislead parliament.

CR17 campaign donations

The Public Protector may only investigate violations of the Executives Ethics Code where she has received a written complaint. The Constitutional Court noted that none of the complaints submitted to her referred to the CR17 campaign.

The Public Protector unlawfully expanded the scope of the complaints submitted, and added the CR campaign donations.

She failed to properly investigate whether the president had personally benefitted, and she did not have a shred of evidence.

The Constitutional Court found – “on the basis of the uncontroverted facts” – that Ramaphosa did not personally benefit from the donations made to the CR17 campaign.

Under the code, a member of cabinet only has the duty to disclose if a benefit is received in their personal capacity.

The Constitutional Court agreed with the high court that Mkhwebane had no authority to investigate the issue of whether the president personally benefitted from donations made to the CR17 campaign, and her finding was “fatally defective”.

Money laundering

The Public Protector ignored all the evidence and reached a conclusion that was devoid of any factual foundation.

She did not share the emails on which she relied with Ramaphosa. A person implicated during the course of an investigation is entitled to the opportunity to respond to the implicating evidence, and has the right to question witnesses who gave the relevant testimony.

The Constitutional Court agreed with the high court’s finding that the Public Protector made unsubstantiated findings of money laundering – and “ failed to properly analyse and understand the facts and evidence … showed a complete lack of basic knowledge of the law and its application … did not acquaint herself with the relevant law …”

It added “but the absence of facts is not the only defect”.

“The Public Protector once again misconstrued the empowering legislation.”

The Public Protector had also relied on the incorrect act, the Prevention and Combating of Corrupt Activities Act, to find on money laundering, and referenced this incorrect act in her report.

Crime is not reported to the Public Protector for investigation.

The Constitutional Court agreed with the high court that the Public Protector’s finding lacked legal and factual foundation, and added “this conclusion is unassailable”.

Were the Public Protector’s remedial actions lawful?

The Constitutional Court found that the failure to give the president a hearing rendered the remedial actions null and void.

However, there were many other reasons which rendered them invalid, such as:

• The Public Protector, acting outside her mandate, tried to order the speaker and the joint committee to take steps that were outside their mandate.

• She had issued “vague” remedial action to the president.

• She issued supervisory orders against the speaker, despite the fact that she is accountable to the speaker.

• She did not have an open and an enquiring mind.

• She made findings that were not supported by the facts.

• She was “unduly suspicious” of the person she was investigating. Consequently, the investigation was improperly conducted.

• She disregarded uncontroverted evidence to the effect that the president did not personally benefit from the CR17 donations.