Legalbrief | your legal news hub Sunday 26 September 2021

Mkhwebane warns of constitutional crisis

Public Protector Busisiwe Mkhwebane has kept up the pressure on beleaguered President Cyril Ramaphosa, accusing his administration of failing to protect the people of SA by litigating against her. In other developments yesterday, it was revealed that she is now facing criminal charges and her own office has been asked to investigate her for maladminstration (see reports below). In an exclusive interview with EWN, Mkhwebane raised concerns about the relationship between her office and the Presidency, saying the legal battles between the two could lead to a constitutional crisis. The Public Protector faced off with the President in court over her remedial action involving Public Enterprises Minister Pravin Gordhan in which Ramaphosa is seeking to interdict the implementation of the remedial action pending Gordhan's review application. The President has also filed an application to review and set aside Mkhwebane's Bosasa report, which found Ramaphosa violated the Executive Code of Ethics by not declaring donations to his presidential campaign in 2017. Mkhwebane also lashed out at the country’s judges who have delivered damning rulings against her, telling them to be objective and 'play the ball and not the person'.

The principle of ‘play the ball, not the person’ should be applied when dealing with matters investigated by her office, said Mkhwebane. ‘We need to have the rule of law in this country, play the ball and not the person. Be objective, deal with what the law is saying. Let's focus on facts and law, let's not go further and deal with the integrity of a person,’ Mkhwebane is quoted as saying in a News24 report on the EWN interview. Mkhwebane added that should the country continue with the pace it was currently at, it might face a ‘constitutional crisis’. ‘The Constitution is very clear about Chapter Nine institutions – that state organs, or anyone, must not interfere with the functioning of the institution; they must support it. I do not think we need to be moving at this pace we are moving in – we are going to be facing a very serious constitutional issue; we cannot pick and choose how we apply the law. I do not issue a report because I want to deal with people,’ she said. Despite what she refers to as ‘attacks’ and a ‘smear campaign’ against her, she said she had no regrets. ‘I am well and I have peace. I never paused before I took this post, I have no regrets.’

Mkhwebane also told EWN the media had no right to approach her mother in the midst of her legal battles. ‘It is a very serious invasion of privacy and security issues. It reminds me of apartheid times – the smear campaign. They are trying to deal with me, discredit me, trying to show others that these are untouchables, for instance your Reserve Bank. It is a very low for the South African media – we will be dealing with that because that person had no right to interview my mother,’ she said. News24 says it spoke to Mkhwebane's mother, Martha Mkhwebane, who said she was concerned about how her daughter would manage to pay 15% of the Reserve Bank's legal fees in the Absa/Bankorp matter. ‘The money she must pay is close to R1m … what did she do to deserve this?’ she asked during an interview at her home in Kwaggafontein, Mpumalanga. News24 says it secured the interview through the Public Protector's younger sister, Jeanette Mkhwebane. The Public Protector revealed to EWN she had hired security to protect her mother. ‘I had to arrange security for her because I do not know if this was genuine or if it was a strategy of apartheid operations where they go to your family to deal with you,’ she explained. When Mkhwebane was probed on whom she was referring to when she claimed ‘they’ were discrediting her, she identified the ‘media and non-governmental organisations’. ‘There is at least two or three articles daily. What are you trying to do to the minds of South Africans,' she asked.

Accountability Now has created another problem for Mkhwebane – by laying a criminal charge against her. Its director, Paul Hoffman, in an article on the Daily Maverick site, says charges of perjury and defeating the ends of justice have been laid ‘in order to to inject a stiff dose of reality into the debate’ around the Public Protector. He says the matter will be investigated by SAPS, who have been requested to accord it urgent treatment. ‘The charges are based entirely on the binding findings of the Constitutional Court in the costs spat between the Reserve Bank and the Public Protector. Accordingly, the police investigation is a simple one. The original affidavits in which the Public Protector lied on oath are safely filed in the office of the Registrar of the Constitutional Court and the judgment itself is readily available online. A completed docket can be presented to the NPA within a few days.’

On the planned parliamentary hearing by the National Assembly’s Justice Committee for the removal of Mkhwebane from office on (or before) 3 September, Hoffman says she should be suspended on the day the hearing begins. 'On that day the Deputy President should be asked to suspend Mkhwebane in terms of the powers he has under section 194(3)(a) of the Constitution, read with section 90(1). The President himself is unable to act in relation to the suspension of Mkhwebane because he is conflicted by the litigation he has launched against her. It thus falls to the Deputy President to fulfil the duty of the President to suspend the Public Protector while the proceedings against her in Parliament are pending,' argues Hoffman. He suggests ‘the debate around the future of the Public Protector needs less political heat and more legal light', adding: 'The four-pronged pitchfork of criminal prosecution, striking off the roll of advocates and suspension by the Deputy President pending a parliamentary removal from office process may, in combination, bring the Public Protector to her senses sufficiently to do the honourable thing by her country and resign.’

Hoffman has gone further, according to a report in Die Burger. He has officially requested the Office of the Public Protector to investigate her for ‘maladministration’. The report says Hoffman submitted a complaint against Mkhwebane with the Public Protector's office after laying criminal charges. He argues that Mkhwebane’s conduct and how she conducts investigations amounts to maladministration. Hoffman says Deputy Public Protector Kevin Malunga should decide whether the Office of the Public Protector should investigate Mkhwebane.

In a related matter, analyst and constitutional law expert Professor Shadrack Gutto believes Ramaphosa must apologise to the nation for the ongoing controversy regarding funders of his CR17 campaign for the ANC presidency. This after reports at the weekend revealed some of the funders who pumped millions into Ramaphosa's successful bid to lead the ANC in the so-called Ramaphosa e-mail leaks, says a TimesLIVE report. The leaks also revealed that Ramaphosa might have known about some of the funders, contrary to his previous assertion that he was in no way involved in sourcing money for the campaign. Gutto said for Ramaphosa to find peace, he must apologise to the nation and withdraw a court challenge to review the Public Protector's report into the matter. Gutto said: ‘I am no legal adviser for the President, but I would say the President has reached a position where he ought to apologise to the nation. ‘Also, he actually has to remove the court action which he was taking against the Public Protector, questioning her findings that he may have broken the Constitution and did not abide by Executive Ethics Code. ‘He must do what the Public Protector asked him to do and implement the remedial action.’ Gutto said the Ramaphosa leaks must expose the gaps in the electoral system for political office in the country. To this end, he believes the focus should not be on Ramaphosa but rather that a fully-fledged inquiry into funding of individuals and political parties must be established. During the inquiry, he said, others, including those who competed against Ramaphosa for the ANC top job, must also be compelled to reveal their funders.

Ramaphosa did not commit any crime and is under no obligation to declare campaign donors, Presidency spokesperson Khusela Diko told eNCA. A Polity report notes Diko said the narrative emerging around the leaked e-mails was nothing more than ‘smoke and mirrors’ and maintained that Ramaphosa had been honest over his involvement in the campaign’s finances. ‘We are quite perturbed by the narrative being built around these e-mails. Yes, we appreciate that South Africans have a legitimate right to want to know who funded the campaign, but there was no obligation on the part of the President or the campaign to release that particular information,’ Diko said. ‘There is no regulation that requires for that information to be made public, and a lot of those donors would have donated because it was going to be confidential.’

A Beeld report elaborates on what Ramaphosa has claimed to date about funding for his campaign and whether the leaked e-mails contradicted this. The report quotes from Ramaphosa’s affidavit submitted to the Gauteng High Court (Pretoria) as part of his urgent application to be heard on Monday. In it, he does not claim to have had no knowledge at all, and said he was asked by his campaign managers for ‘guidance on possible donors’ from time to time. The President says his campaign had a donor committee and finance committee responsible for soliciting funds and managing finances. ‘It was agreed that I, as far as possible, would not be directly involved in requests for donations. The general practice was that the details of donors and their donations would not be shared with me. I attended various fundraising events where I shared my vision for the ANC and the country. The campaign management team mostly consulted with me about the guest list for these events and I was requested for guidance about possible donors.’