Protector not backing down, challenges ConCourt

PUBLIC Protector advocate Busisiwe Mkhwebane is not backing down in her fight to hold President Cyril Ramaphosa accountable for allegedly misleading Parliament about the Bosasa donation during his 2017 ANC presidency campaign.

Mkhwebane’s office said that it had approached the Constitutional Court with an application for the rescission, varying and/or reconsideration of the apex court’s dismissal earlier this month of the office’s appeal against the high court’s decision to set aside the Bosasa investigation report.

“The application centres on the patently erroneous finding that the Public Protector, advocate Busisiwe Mkhwebane, changed the Executive Code of Ethics, replacing the word ‘willfully’ with ‘deliberately or inadvertently’. This finding was pivotal to the decision to dismiss the appeal.

“It will be argued respectfully in court that the court relied on the old version of the Code, which was published in 2000 while advocate Mkhwebane invoked, verbatim, the provisions of the amended version of 2007, which the Constitutional Court has endorsed as recently as March 2016 in the EFF v Speaker of the National Assembly case,” read the statement from her office on Sunday.

Mkhwebane has previously said the court’s dismissal of some of the cases was tampering with the independence of her office as she always has to fork out the costs from her pocket when she was merely doing the work in her professional capacity.

On the recent ConCourt’s decision to reject her court application, her office said: “The office is just as alive to the importance of the principle of finality in the administration of justice as it is to the implications of the dismissal of the appeal on advocate Mkhwebane both in her personal and professional capacities. The dismissal of the appeal also has serious implications for the work of the office, which is the sole enforcer of executive ethics under the Executive Members’ Ethics Act, 1998.”

The ConCourt also had to rule on whether Ramaphosa misled Parliament about donations made to the CR17 campaign.

The appeal by Mkhwebane was dismissed. Delivering the judgment, Justice Chris Jafta said Ramaphosa did not wilfully mislead Parliament or personally benefit from the money.

However, the matter has been remitted to the high court for the amaBhugane Centre for Investigative Journalism claim for constitutional invalidity of the Executive Ethics Code.

Mkhwebane, the EFF, and amaBhungane took their fight for access to the financial records of Ramaphosa’s 2017 ANC leadership campaign to the Concourt.

In March last year, a full bench of the high court – which included Judge President Dunstan Mlambo, judges Keoagile Matojane and Raylene Keightley – reviewed, declared invalid and set aside Mkhwebane’s decision to investigate and report on the CR17 election campaign.

The documents were sealed in 2019 after Ramaphosa had approached the North Gauteng High Court, arguing that Mkhwebane had allegedly obtained the documents illegally.

In a report in which Mkhwebane made an adverse finding against Ramaphosa, she found that the president had lied to Parliament when he responded to a question on a R500,000 donation made to his 2017 ANC presidency campaign by the controversial Bosasa group.

During the application, the EFF said that the documents remaining sealed would encourage corruption.