By Lehlohonolo Lehana.
Public Protector Busisiwe Mkhwebane has applied for a rescission of the Constitutional Court’s decision regarding her investigation into President Cyril Ramaphosa’s CR17 funding.
In a statement on Sunday, Public Protector Advocate Busisiwe Mkhwebane confirmed that she had applied to the Constitutional Court for the “rescission, varying and/or reconsideration” of the harsh court loss she suffered this month when her appeal in the CR17 campaign funding for President Cyril Ramaphosa’s ANC presidential campaign of 2017 was dismissed.
She has argued that the Constitutional Court 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 says in her application, which was filed on Friday.
Public Protector applies for the rescission, varying and/or reconsideration of the Constitutional Court’s Bosasa decision pic.twitter.com/zk5Eql2Nr0
— Public Protector SA (@PublicProtector) July 25, 2021
Attempts at rescission in the Constitutional Court were thrust into the spotlight this month, with Zuma’s lawyers also hoping the apex court would amend or reverse its decision to imprison him for 15 months for contempt. The outcome of that application is still being awaited.
The doctrine of precedent not only binds lower courts, but also binds courts of final jurisdiction to their own decisions,” Madonsela further argues in her papers.
Earlier this month, the Constitutional Court dismissed Mkhwebane’s application for leave to appeal the high court decision to set aside her report into Ramaphosa’s 2017 ANC presidential election campaign.
The majority judgement in the highest court in the land found that the public protector’s report contained many errors in law including some of the terminology she used in the document.
Mkhwebane had approached the highest court in the land after her report into the CR17 campaign was set aside in March last year by the High Court in Pretoria.
Mkhwebane’s findings were that Ramaphosa misled Parliament about a R500,000 donation from by controversial company Bosasa into a bank account linked to the President.