Court dismissed public protector’s findings on CR17 money laundering, committee told

The parliamentary committee inquiry into suspended public protector Busisiwe Mkhwebane’s fitness to hold office was on Wednesday shown court documents disputing her finding that President Cyril Ramaphosa’s 2017 presidential campaign (CR17) was implicated in money laundering. 

Evidence leaders continued to scrutinise evidence Mkhwebane had presented to the commission for six days.

Mkhwebane has been unable to present evidence since Friday after the office of the public protector decided not to continue paying for her legal representation from April 1.

In her report on the donation of R500,000 by African Global Operations CEO Gavin Watson to CR17, the public protector said she made a finding of money laundering because the payment had passed through several intermediaries instead of being a straightforward donation. 

Mkhwebane said she then referred the matter to the relevant institutions for investigation. 

Evidence leader Nazreen Bawa, SC, presented excerpts from a Pretoria high court judgment of March 2020, which reviewed and set aside the report. 

The court ruled Mkhwebane had no foundation in fact and in law to find that Ramaphosa had involved himself in illegal activities sufficient to evoke the suspicion of money laundering.  

“In addition, the public protector based her finding on legislation that has nothing to do with the offence of money laundering,” the judgment reads. 

The court also found that Mkhwebane failed to properly analyse and understand the facts and evidence at her disposal.  

“She clearly did not acquaint herself with the relevant law that defines and establishes the offence of money laundering before making serious unsubstantiated findings of money-laundering against a duly-elected head of state. Had she been diligent she would not have arrived at the conclusion she did,” it said.

Bawa said the court found that Watson had made a donation to CR17 as a long-standing member of the ANC. The court found there was no evidence to the contrary.

The court also found Mkhwebane made serious findings based on unfounded assumptions. 

Another evidence leader, Ncumisa Mayosi, said in her remedial action on the CR17 report that Mkhwebane had directed the National Director of Public Prosecutions (NDPP) to conduct further investigation, within 30 working days, into the prima facie evidence of money laundering she had uncovered during her investigation. 

Mkhwebane also said the NDPP must submit an implementation plan indicating how the remedial action would be implemented. This remedial action was challenged in court.

“What led to the challenge was that she did more than merely refer these matters to relevant authorities; she instructed the NDPP how to discharge her responsibility. What had to be determined by the court was whether the PP’s (public protector’s) remedial action was a mere referral or an instruction to those authorities,” Mayosi said.

Mayosi read from the judgment setting aside the report, which states that the remedial action directed at the NDPP was an instruction.

“The public protector has no power to direct the NDPP when or how to carry out her functions. Nor does she have powers to monitor the NDPP’s conduct. That would undermine the essence of prosecutorial independence,” Mayosi read from the judgment. 

Mayosi said the committee could ask Mkhwebane whether she accepted she did not have the authority to issue instructions to the NDPP. 

The hearing continues. 

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