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

The lawyer representing Public Protector Busisiwe Mkhwebane has told the Constitutional Court that it was "wrong" for the Gauteng High Court in Pretoria to set aside her report into President Cyril Ramaphosa's CR17 campaign, adding Mkhwebane had jurisdiction to investigate the president.

The 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.

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

It 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 - which 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 donations to the CR17 campaign. 

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

The High Court further 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.

It also found Mkhwebane displayed a "complete lack of basic knowledge of the law and its application". It also called some of her findings "unfathomable".

On Thursday, Mkhwebane's counsel, advocate Muzi Sikhakhane, started his argument by explaining to the justices that the appeal was about the legality of the conduct of the two "most constitutional human beings".

"Both of whom must be held to the higher standards of accountability in constitutional compliance," he said.

He said matters that involved Ramaphosa, who was deputy president at the time, fell within matters of the State.  

Sikhakhane said it was "wrong" for the Gauteng High Court in Pretoria to set aside the report.

Turning to the High Court ruling which said Mkhwebane had no jurisdiction to investigate donations to a deputy president, who sought to ascend to a position of power within his party so that he could be president of the country - and because public money was not used, Sikhakhane said:

"Of course, a private party that bribes me uses private money.

"I'm not suggesting that it was a bribe, I'm just saying the idea that when private money is used/involved in exchange with someone who occupies the office or to donate significantly to their campaign [and] because private money is used... is, with respect, in our view, incorrect."

Sikhakhane was also quizzed about Mkhwebane's area of competency in so far as investigations of the campaign funds. 

He said there was nothing irrational about Mkhwebane's findings.  

He also added: "There has been an analysis that it's a party-political funding issue. This isn't (and) this is money given to an individual to compete with his colleagues in his party so that he can win.

ALSO READ | Court rules in Ramaphosa's favour, grants interdict against Public Protector's remedial action

"And in our view that is a significant donation by private parties into the coffers that are designed to advantage a single individual not a party, to win internally so that he can become president of that party, and as we know those issues are matters of the state," he said.

Asked if Mkhwebane had powers or the competency to direct Batohi to conduct an investigation into money laundering, Sikhakhabe said it was rational for Mkhwebane to refer the matter to relevant authorities. 

He, however, said his client "can't direct in such great detail what is it that they [NDPP's office] must do in conducting their investigation".

He told the justices that not the entire report and remedial action that should be set aside. 

"I'm not suggesting the report is perfect, no. I'm suggesting that there are aspects, if the court so thinks, that may well be vulnerable to challenge and I think it is those aspects only, rather that the referral itself or rather than the entire report that must be set aside."

"But I am submitting that it is not irrational that she referred the matter there and that she asked another organ of state to indicate to her what they were doing," he said. 

When asked about the facts to which Mkhwebane based her "suspicion on money laundering", Sikhakhane said it was "the movements of money, but those who are in the NDPP may well tell her that she is wrong".  

READ | Modise pleased with court decision on Mkhwebane’s CR17 report

He admitted that the NDPP would likely have dismissed her suspicion on money laundering.

Meanwhile, advocate Ishmael Semenya, representing the Economic Freedom Fighters also agreed with Sikhakhane, saying the High Court got it wrong, adding that the public protector did indeed have jurisdiction to investigate. 

"The powers of the public protector are very wide in relation to her investigations," he said.  

Mkhwebane's report followed an investigation which was initiated after two complaints from opposition party leaders - former DA leader Mmusi Maimane and EFF deputy president Floyd Shivambu.

On 8 November 2018, Maimane asked Ramaphosa about a R500 000 payment which was believed to have made to his son, Andile, by corruption-accused company Bosasa.

Ramaphosa responded that he was aware of Andile's contract with Bosasa and that he had been assured that it was above board.

A week later, Ramaphosa addressed a letter to Modise when he was alerted that the bank account in question, named by Maimane and contained in an affidavit by former Bosasa auditor Peet Venter, actually belonged to the CR17 campaign.

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