By Lehlohonolo Lehana.
The Constitutional Court on Wednesday dismissed Public Protector Busisiwe Mkhwebane’s application to revoke its judgment relating to President Cyril Ramaphosa’s ANC presidential campaign of 2017.
The apex court unanimously ruled that Mkhwebane’s application for the rescission of its majority ruling, which confirmed the invalidation of her CR17 report by the Gauteng High Court in Pretoria, should be dismissed “as no case has been made for rescission”.
Mkhwebane approached the ConCourt with her rescission application in July 2021, seeking to have the apex court reverse its own judgement.
In her papers, the Public Protector argued that the ConCourt itself violated the Constitution and the principles of legal precedence by failing to recognise the same 2007 Executive Ethics Code that was used when her predecessor, Advocate Thuli Madonsela, made findings against then president Jacob Zuma in her Nkandla investigation.
“This is an unprecedented and unconstitutional departure from the well-established principle of stare decisis [Latin for precedence], which has been consistently upheld by this honourable court,” she said.
She said the ConCourt had relied on the Executive Ethics Code published in 2000.
The rescission came after the ConCourt dismissed Mkhwebane’s application for leave to appeal a high court ruling, which set aside her report into the CR17 campaign.
The ConCourt majority judgment held that no law had authorised Mkhwebane to investigate the private affairs of political parties and concluded that Ramaphosa did not deliberately mislead Parliament about donations, which is in contrast to what the public protector had found in her report.
The apex court also ruled that Mkhwebane changed the Executive Ethics Code to align with her findings in her report.
Mkhwebane went to the ConCourt after her report into the CR17 campaign was set aside in March 2020 by the Pretoria High Court.
The public protector released the report on the CR17 campaign in July 2019.
In the report, she found Ramaphosa had deliberately misled Parliament and recommended an investigation by the police into possible money laundering.
The dismissal of Mkhwebane’s rescission application is yet another major blow for the beleaguered Public Protector, who is facing another perjury case over her disastrous efforts to defend her invalidated report on the SA Reserve Bank.
She is also embroiled in litigation linked to the pending parliamentary inquiry into her fitness to hold office with her term coming to an end in 2023.