By Lehlohonolo Lehana.
Public protector Busisiwe Mkhwebane is considering approaching the Constitutional Court to ask it to reconsider its finding that she “changed” wording in the Executive Code of Ethics when it dismissed her appeal on her report on President Cyril Ramaphosa’s CR17 ANC election campaign funding.
Mkhwebane approached the Constitutional Court to appeal against a Pretoria high court judgment which set aside her finding that Ramaphosa had misled parliament about the funding for his 2017 bid to be elected ANC president.
The Constitutional Court found that the evidence before the Public Protector did not establish wilfulness. Instead, Mkhwebane changed the executive ethics code to align with her findings.
“Therefore, the Public Protector was wrong on the facts and the law with regards to the issue whether the president had wilfully misled parliament and the High Court was right to set aside her finding,” Justice Chris Jafta read.
The public protector also did not have powers to investigate private affairs of political parties.
These findings were made by the majority of the Constitutional Court on Thursday as it dismissed the appeal by Mkhwebane against a decision made by the Pretoria high court in March last year.
The majority judgment also held that Ramaphosa was not obliged to disclose the donations received by the CR17 campaign as he did not personally benefit from them.
Public protector spokesperson Oupa Segalwe said Mkhwebane was considering asking the apex court to reconsider its finding that she “changed” wording of the Executive Code of Ethics by removing the adjective “wilfully” and replacing it with “deliberately and inadvertently” in relation to Ramaphosa allegedly misleading parliament.
“She is aggrieved because the suggestion here is that she is so unscrupulous that she would go as far as edit the code so as to have it read in the terms of her preference for purposes of making an adverse finding at all costs,” said Segalwe.
He said the truth was that there were two versions of the code.
One, said Segalwe, was published in 2000, which used “wilfully”, and the other was published in 2007 as part of the Ministerial Handbook, where the adjectives “deliberately and inadvertently” are used instead.
“The ConCourt relied on the former while the Public Protector relied on the latter. Accordingly, with the greatest of respect, the court got it wrong when it concluded that the PP ‘changed’ the code,” said Segalwe.
He said the Constitutional Court relied on the 2007 version of the code in its “Nkandla judgment”.
“In addition, the Public Protector has previously relied on the same version when she made adverse findings of misleading parliament against the likes of former minister Lynne Brown,” he said.
“On the strength of the finding, President Ramaphosa released Ms Brown from office. This much his office confirmed to the PP in writing. In fact the office has always used this version of the code,” said Segalwe.