ConCourt hears Mkhwebane ‘acted in bad faith’ during CR17 probe
The Constitutional Court has heard an application by Public Protector Busisiwe Mkhwebane to appeal a High Court judgment which set aside her report into President Cyril Ramaphosa's ANC presidential funding campaign.
Mkhwebane's report found that Ramaphosa had deliberately misled Parliament when he told MPs that R500 000 donated to his CR17 campaign by late Bosasa boss Gavin Watson was a business transaction between Watson and his son.
Ramaphosa later corrected the statement, saying he was not aware of all the donations to his campaign.
In its damning judgment in March, the High Court in Pretoria declared Mkhwebane's report invalid.
Judge Elias Matojane said Mkhwebane had no regard for the law and recklessly acted outside her powers when she investigated the matter.
On Thursday Mkhwebane's lawyer, Advocate Muzi Sikhakhane, told a full bench of the apex court that the lowered court had erred.
"The North Gauteng High Court, in setting aside the report and its findings was wrong, and what this court must determine is whether the public protector having conducted the investigation the way she did, did what a reasonable person in her position should have done. Not whether the decision she made was correct, but whether what she did was rational," said Sikhakhane.
He argued that due to Ramaphosa's position as deputy president of the country at the time of the campaign, the public protector was within her powers to investigate the campaign funding as it has the potential to influence state affairs.
Chief Justice Mogoeng Mogoeng and other justices, questioned the decision by Mkhwebane to instruct the National Director of Public Prosecutions (NDPP) to investigate Ramaphosa for money laundering.
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Sikhakhane said Mkhwebane referred the matter to the NDPP as the flow of funds between different accounts related to the campaign were suspicious.
Ramaphosa's lawyer Advocate Wim Trengrove told the court Mkhwebane made errors that prove that she was acting in bad faith.
"Firstly, she misread the ethics code badly and quoted a variety of renditions of the same provision which is a symptom of the recklessness of an appalling kind. She also conflated the concepts of willful or negligent conduct. A confusion so basic that a lawyer in good faith could not have made."
His colleague, Advocate Tembeka Ngcukaitobi, said the campaign could not have influenced state matters at it was autonomous.
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