Mkhwebane is a rogue, Ramaphosa's lawyer tells high court

04 February 2020 - 16:11 By Qaanitah Hunter
Busisiwe Mkhwebane's legal battle with President Cyril Ramaphosa returned to court on Tuesday.
Busisiwe Mkhwebane's legal battle with President Cyril Ramaphosa returned to court on Tuesday.
Image: Simphiwe Nkwali

The North Gauteng High Court on Tuesday heard President Cyril Ramaphosa’s lawyer call public protector Busisiwe Mkwebane a rogue who acts recklessly.

Her legal team hit back, saying she was called a rogue without justification.

A full bench, led by judge president Dunstun Mlambo, heard arguments in Ramaphosa’s bids to have Mkhwebane’s so-called “Bosasa report” overturned and ruled unlawful.

Ramaphosa's lawyer Wim Trengove told the court that Mkhwebane had an “irrational determination to make adverse findings against the president”.

“This is a rogue public protector, who doesn't pay any heed to the facts or the law in her reckless determination to find the president guilty of improper conduct,” he said.

Later, when Mkhwebane’s lawyer Muzi Sikhakhane took the stand, he bemoaned the label. “The public protector — a chapter nine institution — was called a rogue in the court. She was called a rogue without justification,” he said.

He said this case was about the “two most important constitutional beings, both of whom require respect”.

In her report, which found that Ramaphosa misled parliament, violated the executive ethics code and acted inconsistently with his office, Mkhwebane also found prima facie evidence of money laundering in the more than R400m that was donated to the CR17 campaign.

The investigation was in relation to a 2017 donation of R500,000 that late Bosasa boss Gavin Watson made to Ramaphosa's ANC presidential campaign.

Ramaphosa turned to courts to have the so-called “Bosasa report” set aside and declared unlawful.

The president is relying on two main arguments to dislodge Mkhwebane’s report: that he did not know about the donation made to his CR17 campaign, and that Mkhwebane did not have jurisdiction to investigate donations made to a private political campaign.

His legal team sought to prove to the court that Mkhwebane erred in the law when she misread the executive ethics code, made a material error of fact in finding that Ramaphosa misled parliament, and that the finding of suspicion of money laundering was irrational with no legal basis.

Addressing the court in the morning, Trengove argued that Mkhwebane did not even know what money laundering meant. “There was absolutely no evidence of money laundering,” he said.

He called the finding “irrational” and “inexplicable”, adding that it “suggested a reckless determination to make a finding against the president”.

Advocate Tembeka Ngcukaitobi, also for Ramaphosa, argued that Mkhwebane did not have the jurisdiction to investigate the finances of a political party campaign.

“Mkhwebane went on a frolic of her own to inquire around the campaign, to subpoena people, to subpoena bank records,” he said.

Ngcukaitobi said Mkhwebane did not have any facts underpinning her conclusion that Ramaphosa was a beneficiary of the CR17 funds.

He argued that this case was unlike the Nkandla case, where the Constitutional Court found a conflict of interest in the upgrades to former president Jacob Zuma’s KZN homestead using public funds.

“There are no similar facts at all,” he said.

Advocate Gcina Malindi — for the speaker of the National Assembly, Thandi Modise — argued that Mkhwebane did not have the powers to direct parliament’s ethics committee to take action against Ramaphosa.

The hearing is ongoing.