Public Protector advocate Busisiwe Mkhwebane. Picture Henk Kruger/ANA/African News Agency
Public Protector advocate Busisiwe Mkhwebane. Picture Henk Kruger/ANA/African News Agency

Mkhwebane hit with legal costs as court sets aside CR17 campaign report

By Zintle Mahlati Time of article published Mar 10, 2020

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Johannesburg - Public Protector Busisiwe Mkhwebane has been ordered to pay the legal costs for the president, the NPA and Parliament in a scathing ruling handed down by the North Gauteng High Court for her handling of the CR17 campaign report.

Mkhwebane suffered another defeat in her attempt to defend her controversial report into the campaign funding of President Cyril Ramaphosa's 2017 CR17 campaign for the ANC presidency.

The full bench of judges at the High Court pulled no punches as they tore apart Mkhwebane's arguments as to why her report should not be set aside.

Ramaphosa had brought the application to review the report which found that he had misled Parliament when he answered questions in relation to a R500 000 donation his CR17 campaign received from former Bosasa CEO Gavin Watson. 

Mkhwebane also found that there was evidence of money laundering regarding the campaign and ordered that the NPA should investigate. 

She also ordered that Parliament's ethics committee to investigate Ramaphosa's violation of the ethics code by not declaring the donations made to his campaign.

The court set aside all of the findings and recommendations and declared her report unlawful. 

Judge Dunstan Mlambo said Mkhwebane had no powers to direct what the NPA should investigate the money laundering aspect of the report and respond within 30 days detailing the outline of the prosecution. The judges found that this direction by Mkhwebane undermined the essence of prosecutorial independence of the NPA.

 "A complete lack of understanding on her part of the limits of her powers. She displayed a clear failure to understand prosecutorial conduct," Mlambo said.
 
The court also found that Mkhwebane's report failed to prove how Ramaphosa had misled Parliament. The judges were scathing in their analysis of how she interpreted the law to justify why she believed Ramaphosa had misled Parliament.

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

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

Matojane said there was also 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 dismissed an application by media group AmaBhungane, which joined the case independently. The organisation had asked the court to amend the executive ethics code to force politicians who were vying for political office to disclose their donors. 

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