South Africa | CR17 campaign funding: Mkhwebane case 'hopeless' on merits and should be dismissed, says lawyer

The Constitutional Court should dismiss Public Protector Busisiswe Mkhwebane application to appeal a Gauteng High Court ruling which set aside her report into President Cyril Ramaphosa's campaign because the case is "hopeless" on merits, says advocate Tembeka Ngcukaitobi SC.

Ngcukaitobi, who appeared on behalf of Ramaphosa, said Mkhwebane acted in breach of the Constitution because she had no jurisdiction to investigate a campaign such as the CR17 campaign.

He said:

"We would argue that the jurisdictional argument has simply not been met at all. You should dismiss the case on appeal because the case is hopeless on the merits."

Mkhwebane's report found that Ramaphosa deliberately misled Parliament about a donation to his ANC presidential (CR17) campaign.

In March, a full Bench of the court ruled that Mkhwebane's findings included material errors in law.

READ | CR17 campaign funding: Mkhwebane's lawyers tell ConCourt she has jurisdiction to investigate

The court found she did not have jurisdiction to investigate the funding of the CR17 campaign, News24 reported.

The court then set aside the July 2019 report and the remedial actions contained in the report.

This included remedial actions directing the Speaker of Parliament and the National Director of Public Prosecutions (NDPP) to conduct further investigations. 

This included "instructing" NDPP Shamila Batohi to investigate "suspicions of money laundering" and instructing National Assembly Speaker Thandi Modise to refer Ramaphosa's non-disclosure of donations to the joint committee on ethics, as well as directing Ramaphosa to declare all the donations to the CR17 campaign. 

The court also set aside the finding that Ramaphosa violated the Executive Members Ethics Act by failing to declare the donations to Parliament, and it ruled that he had received no personal financial benefit and was not obliged to declare. 


The High Court also found Mkhwebane displayed a "complete lack of basic knowledge of the law and its application".

On Thursday, Ngcukaitobi told the justices that Mkhwebane had been found "wanting".

ALSO READ | Public Protector demands donations made to CR17 campaign be made public

"It's clear she had an outcome. She had facts which were inconvenient, she discarded them. She wanted to reach her outcome. That should simply not be tolerated," Ngcukaitobi said.

He also told the court that Ramaphosa was a massive funder of the CR17 campaign.

"Mr [Wim] Trengove (also for Ramaphosa) was embarrassed to mention the figures but, I am not. The president paid R31 million to the campaign; he paid another R6.2 million to the campaign."

Earlier Trengove told the court that Ramaphosa did not mislead Parliament, adding Mkhwebane made two "very obvious errors", adding no lawyer in good faith could have made those errors.

"She also confused the concepts of deliberate and inadvertent conduct," Trengove said. 

He also said the public protector "got it so wrong" and quoted a variety of renditions of the same provisions and also made "reckless determinations" in order to "nail the president".

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