Busisiwe Mkhwebane. Picture: SUNDAY TIMES
Busisiwe Mkhwebane. Picture: SUNDAY TIMES

President Cyril Ramaphosa’s lawyer told the North Gauteng high court on Tuesday that public protector Busisiwe Mkhwebane was a rogue who acted recklessly. 

A full bench‚ led by judge president Dunstan Mlambo‚ heard arguments in Ramaphosa’s bids to have Mkhwebane’s Bosasa report overturned and ruled unlawful.

Ramaphosa’s lawyer Wim Trengove told the court that Mkhwebane has an “irrational determination to make adverse findings against the president”.

“This is a rogue public protector‚ who doesn’t pay any heed to the facts or the law in her reckless determination to find the president guilty of improper conduct‚” he said.

Later‚ when Mkhwebane’s lawyer Muzi Sikhakhane took the stand‚ he bemoaned the label. “The public protector — a Chapter 9institution — was called a rogue in the court. She was called a rogue without justification‚” he said, adding that the case is about the “two most important constitutional beings‚ both of whom require respect”.

In her report‚ which found that Ramaphosa misled parliament‚ violated the executive ethics code and acted inconsistently with his office‚ Mkhwebane also found prima facie evidence of money laundering in the more than R400m donated to the CR17 campaign. The investigation was in relation to a 2017 donation of R500‚000 that the late Bosasa boss Gavin Watson made to Ramaphosa’s ANC presidential campaign.

Ramaphosa turned to the courts to have the report set aside and declared unlawful.

The president is relying on two main arguments to dislodge Mkhwebane’s report: that he did not know about the donation made to his CR17 campaign; and that Mkhwebane does not have jurisdiction to investigate donations made to a private political campaign.

His legal team sought to prove to the court that Mkhwebane erred in the law when she misread the executive ethics code‚ made a material error of fact in finding that Ramaphosa misled parliament‚ and that the finding of suspicion of money laundering was irrational with no legal basis.

Money laundering?

Addressing the court in the morning‚ Trengove argued that Mkhwebane did not even know what money laundering meant. “There was absolutely no evidence of money laundering‚” he said, calling the finding “irrational” and “inexplicable”. He added that it “suggested a reckless determination to make a finding against the president”.

Advocate Tembeka Ngcukaitobi‚ also for Ramaphosa‚ argued that Mkhwebane does not have the jurisdiction to investigate the finances of a political party campaign. “Mkhwebane went on a frolic of her own to inquire around the campaign‚ to subpoena people‚ to subpoena bank records‚” he said.

Ngcukaitobi said Mkhwebane does not have any facts underpinning her conclusion that Ramaphosa was a beneficiary of the CR17 funds. He argued that this case is unlike the Nkandla case‚ in which the Constitutional Court found a conflict of interest in the upgrades to former president Jacob Zuma’s KwaZulu-Natal homestead using public funds.

“There are no similar facts at all‚” he said.

Advocate Gcina Malindi — for the speaker of the National Assembly‚ Thandi Modise — said that Mkhwebane does not have the powers to direct parliament’s ethics committee to take action against Ramaphosa.

The hearing is ongoing.

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