Mkhwebane asks ConCourt to rescind finding that she 'changed' wording of key ethics code in 'CR17' investigation

Public protector Busisiwe Mkhwebane has approached the Constitutional Court to request that it rescind its statement that she had “changed” the Executive Code of Ethics as part of her investigation into the “CR17" campaign funding investigation.

The court ruled earlier this month that Mkhwebane changed the wording of the code to conclude that President Cyril Ramaphosa had inadvertently or deliberately misled the legislature.

It made the finding as it dismissed Mkhwebane's appeal against the judgment of the Pretoria high court, which in March last year set aside a report in which she 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.

In a statement on Sunday, Mkhwebane's office confirmed that it had approached the apex court on Friday, to apply for a “rescission, varying and/or reconsideration” of its ruling.

“The application centres on the patently erroneous finding that the public protector, Adv Busisiwe Mkhwebane, 'changed' the Executive Code of Ethics, replacing the word 'wilfully' with 'deliberately or inadvertently'. This finding was pivotal to the decision to dismiss the appeal.

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

Her office said there were implications of the case being dismissed on her “personal and professional capacities”.

“The dismissal of the appeal also has serious implication for the work of the office, which is the sole enforcer of executive ethics under the Executive Members’ Ethics Act [of] 1998,” the statement said.

In her affidavit furnished to the court in support of her rescission application, Mkhwebane pointed out that the Constitutional Court had “accepted and affirmed” the 2007 version of the code — upon which she relied to make her finding on Ramaphosa’s submissions to parliament about his campaign funding — when it made its judgment on former public protector Thuli Madonsela’s “Nkandla report”.

“During the investigation into the well-known Nkandla matter, Adv Madonsela admitted that she had relied on the Feb. 7, 2007 version of the code.

“When the matter served before this honourable court, Adv Madonsela placed reliance on the 2007 code and this same court accepted and affirmed the 2007 code was the correct code applicable,” she said.

She included two other examples of where Madonsela relied on the 2007 version of the code to make “adverse” findings in her reports.

She said the Constitutional Court abandoned its recognition of the 2007 code when it concluded that she had “seriously misconstrued the code”.

She said the Constitutional Court erred in her case by departing from the precedent it had set itself when it acknowledged the authority of the 2007 code.

“A material factual or legal matter was overlooked in the decision in that this court was either genuinely unaware that it had already accepted the code of ethics being used by the public protector as applicable law in the 'Nkandla judgment' or it departed from the judgment without expressly so pronouncing or giving reasons,” she said.

The Constitutional Court judgment was scathing against Mkhwebane when it ruled that she had “changed the wording” of the ethics code.

“But what is more concerning with the report is that the public protector changed the wording of the code by adding 'deliberate and inadvertent misleading of the legislature',” read the judgment.

“That this is an addition is apparent from the statement quoted above. She states that the president’s reply breached paragraph 2.3(a) of the code, 'the standard of which includes deliberate and inadvertent misleading'.

“It is inconceivable that the sole word used in the code 'wilfully' could be read to mean 'inadvertent' ... The public protector then changed the wording of the code to include 'deliberate and inadvertent misleading' so as to match with the facts,” the judgment read.

The court said that after she had changed the wording of the code Mkhwebane “proceeded to conclude that the president had violated the code.

“It is unacceptable that the public protector did what no law authorised her to do,” the court said.

The judgment said that her finding about Ramaphosa misleading parliament was “fatally flawed due to a material error of law”.

“For this reason alone, the finding warrants review and setting aside,” it read.

In her argument for the exceptional circumstances under which she brought the application for the court to reverse its own decision, Mkhwebane said that the court had made a “patent error” in that it failed to rely on the precedent it had set in its previous rulings.

She said the pronouncement made her and the office of the public protector “particularly vulnerable to unfounded political attacks aimed at undermining the constitutional functions” of her office.

She said her application was narrow in that it did not seek the court to rescind the part of its application which found that the public protector did not have the authority to investigate the private affairs of a political party, though she sided with the minority judgment by chief justice Mogoeng Mogoeng.

Mogoeng departed from the majority judgment that Ramaphosa’s funding was a private matter which the public protector was not entitled to investigate.

The initial complaint to the public protector’s office in 2019 came from then DA leader Mmusi Maimane who asked the public protector to investigate the CR17 funding campaign after Ramaphosa admitted to parliament that his campaign had received a R500,000 donation from former Bosasa executive Gavin Watson.

The state capture commission would later hear evidence of how Bosasa executives were enriched by alleged corrupt state contracts.

In his minority judgment Mogoeng said Ramaphosa told parliament he was not aware of the payment to his campaign by Watson.

Mogoeng said that the ethics code forbids that members of the executive “expose themselves to any situation involving a risk of a conflict between their official responsibilities and their private interest”.

“When a vacancy in the presidency of the governing party and, by extension, the presidency of the republic loomed large, the then deputy president, His Excellency Cyril Ramaphosa, decided to raise his hand,” said Mogoeng.

“Apparently, a successful campaign for the attainment of that personal ambition or private interest required financial resources in abundance,” he said.

“A funding mechanism for that race to the top was developed with his blessings. I say with his blessings advisedly because he too contributed his own money to the kitty, he reportedly addressed fundraising meetings attended by sponsors and interacted with some of the sponsors,” he said.

Mogoeng said Ramaphosa did not seem to have been “oblivious to the existence and purpose of the CR17 campaign”.

He said a determination needed to be made whether Ramaphosa’s private interests were advanced in his ascendancy to president of the ANC and by default to the president of SA through the use of his campaign funding.

Mkhwebane said that though her rescission application was “not intended to constitute a back door appeal” against the apex court’s decision that the office of the public protector was not entitled to investigate the campaign funding, she held the view that the court came to the incorrect conclusion on that aspect as well.

“For avoidance of any doubt, I state that I fully accept that to be the correct legal position,” she said.

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