Why Busisiwe Mkhwebane has been a godsend to Cyril Ramaphosa and the CR17 campaign

When it was revealed that the corrupt Bosasa company had made a R500,000 donation to President Cyril Ramaphosa’s ANC presidential campaign (CR17), that the campaign burnt through millions of rand and that the public protector had obtained “incriminating” bank statements of the CR17 campaign, Ramaphosa’s opponents must have thought that the subsequent public protector report on the matter would deal a devastating blow to the Ramaphosa project by exposing some of the smallanyana skeletons in the Ramaphosa campaign.

But things didn’t turn out that way. The subsequent public protector report turned out to be of such low quality, and so lacking in impartiality and fairness, that the North Gauteng High Court had no choice but to declare it invalid in the most scathing terms. Instead of everyone talking about the manner in which large sums of money donated to political candidates have the potential to corrupt the political process, everyone is talking about how tragically incompetent and biased the public protector is.

Make no mistake, there are good reasons to talk about the high court judgment in the case of President of the RSA v Public Protector. While it is impossible to discuss every aspect of the case, let’s have a look at some of the major points of interest.

The court invalidated the public protector’s finding that the President misled the National Assembly in breach of the Executive Members Ethics Code because she made a fatal error of law and a fatal error of fact. The error of law occurred when the public protector inexplicably “reframed” (in other words, rewrote) the applicable section of the Ethics Code and then applied this obviously wrong text to the facts. The court pointed out that the public protector was therefore “confused about the legal foundation of her finding”. 

More damning, the report contradicts itself (perhaps due to a lack of basic editing), stating in one place that the President had deliberately and/or inadvertently misled Parliament, while elsewhere finding that the President had deliberately misled Parliament. 

To make things worse, this is not the first time the public protector had made the same mistake. In the report on Pravin Gordhan she also “reframed” the relevant section of the code. When the court pointed out this mistake when considering Gordhan’s request to interdict that report, the public protector did not back down (or, as most half-competent lawyers would do, check the law), but went on attack instead. 

In legal papers for leave to appeal in the Gordhan case, she claimed that the court “was plainly wrong” when it corrected her wording of the Code “as the Code makes pellucid that even inadvertent misleading of the Legislature is sufficient”. She repeated her criticism of the high court and Minister Gordhan in scathing terms: 

“The Court paid absolutely no attention to the public interest at stake here and was preoccupied mainly with Mr Gordhan’s hyper-technical but woefully flawed arguments that a statute which prohibits inadvertent violations must only be read to outlaw wilful misrepresentations.”

“This response displays a deep-seated inability, or refusal, to process facts before her in a logical and fair-minded manner. Such a response is difficult to reconcile with her constitutional obligations. Furthermore, it was totally irrational...”. 

“To buttress her view the public protector then referred to PRECCA to found her conclusion that money laundering was involved. She made the firm finding that, based on PRECCA, the evidence at her disposal established a ‘prima facie’ suspicion of money laundering. We know that she had no evidence even remotely suggesting that money laundering was at play. We also know that PRECCA has nothing to do with money laundering. The legislation that establishes the offence of money laundering is the Prevention of Organised Crime Act (POCA), and particularly sections 4, 5 and 6.”

“Clearly the public protector had no foundation in fact and in law to arrive at her finding that the President had involved himself in illegal activities sufficient to evoke a suspicion of money laundering. In addition, the public protector based her finding on legislation that has nothing to do with the offence of money laundering. The conclusion is inescapable that in dealing with this issue the public protector completely failed to properly analyse and understand the facts and evidence at her disposal. She also showed a complete lack of basic knowledge of the law and its application. She clearly did not acquaint herself with the relevant law that actually defines and establishes the offence of money laundering before making serious unsubstantiated findings of money laundering against a duly elected head of state. Had she been diligent she would not have arrived at the conclusion she did…. On the money laundering issue, the public protector displayed anything but an open mind…. Had she considered this evidence properly, she could not rationally have concluded that these accounts were being used in such a manner as to warrant a prima facie suspicion of money laundering. We find that her findings on the money laundering issue were not only irrational, but, indeed, reckless.” 

“The remedies fashioned by the public protector are thus ineffective and inappropriate. They also constitute an unlawful interference with the Speaker’s constitutional role to determine what measures are most appropriate to deal with conduct that is alleged to breach the Rules or Codes applicable to the National Assembly.”

“We are constrained to find that the public protector’s issuing of the remedial action to the NDPP coupled with her insistence, when the NDPP queried her, that she expected the NDPP to carry out her directive, displays, in our view, a complete lack of understanding on her part of the limits of her powers as provided in section 6(4)(c)(i) of the PPA in relation to matters falling under the NPA. We also find that she displayed a clear failure to grasp the meaning of the concept of prosecutorial independence decreed by section 32(1)(b) of the NPA Act. The PPA and the NPA Act are clear that she has no power to direct the NDPP to investigate any criminal offence and how to go about doing this.”