ConCourt says Mkhwebane got it wrong, Ramaphosa did not mislead parliament on CR17 donation

Public protector Busisiwe Mkhwebane changed the wording of the Executive Ethics Code to conclude that President Cyril Ramaphosa had inadvertently or deliberately misled the legislature.

The Constitutional Court made this finding as it dismissed the public protector's appeal against the judgment of the Pretoria high court, which in March last year set aside her report which found Ramaphosa misled parliament about funding for his campaign to be elected ANC president in 2017.

The Constitutional Court also held that both the constitution and the Public Protector Act do not empower Mkhwebane to investigate the private affairs of political parties.

The case has its genesis on November 6 2018, from a question by former DA leader Mmusi Maimane to the president about money received by his son, Andile Ramaphosa, from Bosasa.

Ramaphosa said his son had business with Bosasa and the payment was for the services he provided.

A week later, the president wrote to the speaker of the National Assembly saying the answer he gave was incorrect. Ramaphosa said the R500,000 was paid into a CR17 bank account.

In a majority judgment by justice Chris Jafta, with six other justices concurring, the court said on Thursday that the public protector changed the wording of the code by adding “deliberate and inadvertent misleading of the legislature” when she held that Ramaphosa misled parliament. 

In terms of the code, “members of the executive may not wilfully mislead the legislature to which they are accountable”.

Jafta said for a member of the executive to breach the code, she or he must have given incorrect information with the intention to mislead the legislature. He said incorrect information alone was not sufficient to constitute a violation of the code.

Jafta said it appeared from her report that she accepted that the president did not wilfully mislead parliament.

“The public protector’s report reveals that, on the facts placed before her, she accepted that the president did not wilfully mislead parliament. This meant that he could not have violated the code,” Jafta said.

Jafta said instead of making the finding that the president did not mislead parliament, the public protector effectively changed the wording of the code to include “deliberate or inadvertent misleading of the legislature” so as to cover the situation where wilfulness was not established.

He said this was concerning.

Jafta said the public protector was wrong on the facts and the law and said the high court was right to set aside her finding that Ramaphosa misled parliament.

Jafta also said the public protector was plainly not authorised to investigate the issue of whether the president personally benefited from donations made to the CR17 campaign.

“There can be no doubt that the CR17 campaign was engaged in the affairs of the ANC, which is a political party,” Jafta said.

He said that it was the ruling party at the time that did not make it a part of the public administration.

“The high court was correct in concluding that the public protector had no authority to investigate the affairs of the CR17 campaign.”

In a minority judgment, chief justice Mogoeng Mogoeng said Mkhwebane was entitled to investigate the complaints.

“Lest we forget, the overall thrust of the public protector’s democracy-entrenching mandate is to rid our state of all forms of impropriety and unethical conduct, particularly at the level of the executive,” he said.

Mogoeng said there was a disturbing tendency by “some of us” to unduly magnify virtually every error of the public protector, real or imagined.

“There can be no doubt that the public protector was wrong in certain respects. For that, she deserves to be dealt with appropriately.”

Mogoeng said it could not be correct to brand virtually everything she did in line with her statutory obligations as shockingly wrong and worthy of strong criticism.

“That, in my view, constitutes the magnification of her errors that courts should — as a way of distinguishing themselves from the media, commentators or analysts, the general public or the so-called court of public opinion — be deliberate and intentional about steering clear of.”

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