The assertion by North Gauteng High Court Judge President Dunstan Mlambo, that Public Protector Busisiwe Mkhwebane showed a lack of understanding of her powers in her CR17 fund report, has left some puzzled.
The assertion by North Gauteng High Court Judge President Dunstan Mlambo, that Public Protector Busisiwe Mkhwebane showed a lack of understanding of her powers in her CR17 fund report, has left some puzzled.

Judge Dunstan Mlambo’s different tunes questioned

By Staff Reporter Time of article published Mar 11, 2020

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Johannesburg - The assertion by North Gauteng High Court Judge President Dunstan Mlambo that Public Protector Busisiwe Mkhwebane showed a lack of understanding of her powers in her CR17 fund report has left some puzzled.

Mlambo’s detractors have pulled out a December 2017 written remark he made while handing down a ruling regarding the state capture report. 

In the 2017 ruling, Mlambo shot down assertions by the legal team of former president Jacob Zuma that former Public Protector, Thuli Madonsela, exceeded her powers in her state capture report. As part of her remedial action, Madonsela had made a binding recommendation that there must be a commission of inquiry to probe the allegations of state capture and Zuma’s legal team raised that perceived exceeding of powers.

One of the most prominent people who raised the matter in the case of the CR17 versus Mkhwebane, was former government spokesperson, Mzwanele Manyi, who pulled out a copy of the 2017 ruling. He highlighted the line that proved Mlambo is not consistent in his rulings. 

Manyi posted this on his Twitter handle on Wednesday amid the raging debate about the impartiality of the country’s courts.  

“Dear Judge President Mlambo. This is what you said in the State of Capture case. But yesterday in the Prez Ramaphosa v Public Protector you changed your tune.You said Mkhwebane breached seperation (sic) of powers doctrine,” Manyi tweeted.

In his own words, as per the ruling which is also freely available on the Southern African Legal Information Institute (Saflii) which publishes legal information for public access which comprises mainly of case law in the country, Mlambo said the Public Protector Act does not constrain an incumbent from seeking help from outside. 

“Because of the financial and other constraints mentioned in the (state capture) report, the Public Protector considered it appropriate that the second phase of the investigation into the allegations of “State Capture” be undertaken by a commission of inquiry. There is nothing in neither the Public Protector Act nor the Ethics Act that prohibits the Public Protector from instructing another organ of state to conduct a further investigation,” Mlambo said back then. 

However, on Tuesday, Mlambo who was leading a full bench of the high court, slammed Mkhwebane for exceeding the scope of her powers. In the CR17 report, Mkhwebane had instructed the National Prosecuting Authority (NPA) to investigate and possibly prosecute acts of money laundering that emanated from the CR17 fund activities. She also wanted parliament to punish Ramaphosa for misleading the house. 

Meanwhile, the donation for Mkhwebane’s support fund to pay legal costs as personally levied on her for the now invalid Estina Dairy farm report has reached R250 000. The chief fundraiser, Thabo Mtsweni of Democracy in Action, said they still need more donations as they have no idea how much the court will say Mkhwebane must pay.

“We are still open to more donations even though we don’t know how much is needed. It is worth remembering that the estimated personal costs are around R900 000,” Mtsweni said.  

Political Bureau

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