Public Protector Busisiwe Mkhwebane. Picture: Danie van der Lith/African News Agency (ANA)
Public Protector Busisiwe Mkhwebane. Picture: Danie van der Lith/African News Agency (ANA)

Mkhwebane had no jurisdiction to investigate CR17 campaign donations, court rules

By Zintle Mahlati Time of article published Mar 10, 2020

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Johannesburg - The North Gauteng High Court has ruled that Public Protector Busisiwe Mkhwebane had no jurisdiction to investigate the CR17 campaign and her findings on donations made to President Cyril Ramaphosa's 2017 ANC presidential campaign are unlawful and set aside.

The court's three judges made the ruling on Mkhwebane's controversial report on Tuesday. This was another blow on the public protector's handling of politically sensitive investigations.

Ramaphosa had asked the court for a judicial review of Public Protector Busisiwe Mkhwebane's report into a R500 000 donation by former Bosasa CEO Gavin Watson to his 2017 CR17 presidential campaign.

Mkhwebane had found that Ramaphosa misled Parliament when he told Parliament that he was unaware of an R500 000 donation from Bosasa towards his campaign.

Judge Elias Matojane said there was no evidence provided by Mkhwebane to show that CR17 campaign warranted an investigation as it was not linked to state resources. 

Motojane said the office of the public protector has powers, but these were limited and could not warrant her extending those powers to investigate cases outside her mandate.

The court also found that Mkhwebane's report failed to prove how Ramaphosa had deliberately misled Parliament. 

The judges were scathing in their analysis of how she interpreted the law to justify why she believed Ramaphosa had misled Parliament. 

Motojane said Mkhwebane's argument on Ramaphosa lying was "fatally flawed due to a fundamental error of law" and irrationality. 

This aspect of the report was set-aside.

The court also found that Ramaphosa had no legal obligation to disclose the donations received by his CR17 campaign, as Mkhwebane had ordered.

 Mkhwebane had found prima facie evidence of money laundering in connection to the more than R400 million donated towards Ramaphosa's 2017 campaign. 

The court ruled that Mkhwebane had failed to prove that the donations received by the CR17 campaign were the proceeds of crime. 

It said Mkhwebane had no foundation in law to substantiate her suspicion of money laundering and that she had relied on wrong law to cushion her reasoning on the matter.

"There can be no offence of money laundering without the proceeds of crime. There was no evidence before the Public Protector that any of the proceeds received were from the proceeds of crime. 

“In dealing with this issue Public Protector failed to analyse the evidence before her and failed to show a basic understanding of the law before making serious allegations against a head of state," Motojane said.

"Her findings (on money laundering) were not only irrational but also reckless."

Political Bureau 

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