Public protector Busisiwe Mkhwebane’s competency in relation to her investigation into the CR17 campaign funds came under sharp scrutiny in the Constitutional Court yesterday, where her lawyer had to admit that she did not have capacity to investigate what was before her.
Mkhwebane’s lawyer Adv Muzi Sikhakhane was at pains trying to explain why the North Gauteng High Court in Pretoria, which set aside her report, was wrong.
Sikhakhane was arguing on an appeal by Mkhwebane to overturn a high court decision that set aside a report in which she found that President Cyril Ramaphosa misled parliament about money received for his presidential campaign.
The apex court heard Mkhwebane’s appeal in the same week that the speaker of parliament, Thandi Modise, announced a three-member panel to look into whether the legislature inquiry into her fitness to hold office should go ahead.
Asked if Mkhwebane had powers or the competency to direct the National Director of Public Prosecutions (NDPP), Shamila Batohi, to conduct investigation into money-laundering, Sikhakhane said it was rational for her to refer the matter to relevant authorities.
On several occasions, Sikhakhane told the court that Mkhwebane did not have capacity to investigate money-laundering allegations relating to the donation as it was not her competence.
In her remedial action, Mkhwebane directed the NDPP to investigate suspicions of money-laundering.
Justice Nonkosi Mhlantla asked why Mkhwebane gave a timeline to the NDPP to look into the money-laundering allegation. “Why would she demand such a document from the NDPP, even set out time frames within which investigations should be conducted?” Mhlantla asked.
Sikhakhane maintained that the move to refer the matter made sense. “The court may determine that she went too far but I’m submitting that… the referral itself is not unlawful,” Sikhakhane said.
He argued that the public protector has the right to refer the matter to those who have the powers to investigate the alleged crime.
Sikhakhane was also questioned by Justice Leona Theron on the legislation she used in dealing with allegations of money-laundering.
“We agree that she was dealing with the question of money-laundering. Money-laundering is an offence under section 4 of the Prevention of Organised Crime Act. In her report, the public protector refers to section 12 of the Prevention and Combatting of Corrupt Activities Act. What was the relevance of that act when the issue before the public protector was one of money-laundering?” Theron asked.
Sikhakhane said the public protector looked at money-laundering as an act of corruption. He conceded that the NDPP was likely to dismiss her suspicion.
“I have accepted that the NDPP would have found that there was no money-laundering… I submit that she had a rational decision to send it to the specialist body, seeing the movement of money,” Sikhakhane said.
In July last year, Mkhwebane found that Ramaphosa misled parliament in his response to a question about a R500,000 donation from Bosasa to his presidential campaign.
Former DA leader Mmusi Maimane filed a complaint with Mkhwebane, asking her to investigate whether Ramaphosa deliberately misled parliament in 2018 when he initially said the R500,000 was paid to his son Andile as part of a legitimate business transaction.
Ramaphosa later returned to parliament and confirmed that the money was for his presidential campaign.
Justice Mbuyiseli Madlanga told Sikhakhane that Ramaphosa’s first response to parliament had everything to do with the question asked by Maimane. “The focus of that question was the payment to the president’s son, not to the CR17 campaign… That goes to the very important issue of wilful misleading,” Madlanga said.
But Sikhakhane would not have it, describing Madlanga’s statement as sympathetic.
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