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Busisiwe will release Cyril’s records

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Public Protector Busisiwe Mkhwebane. Picture: Conrad Bornman/ Rapport:
Public Protector Busisiwe Mkhwebane. Picture: Conrad Bornman/ Rapport:

In the latest court salvo regarding her CR17 probe, the Public Protector will face off against the president by opposing his bid to seal her evidence

Public Protector Busisiwe Mkhwebane is ready to release all the records of her investigation into the funding of President Cyril Ramaphosa’s 2017 ANC presidential campaign on Thursday, saying she is satisfied that “there was no unlawful activity” in her work.

On Thursday, Ramaphosa petitioned the Pretoria High Court to have some parts of Mkhwebane’s pending submission sealed and not disclosed to the public.

He cited concerns about possible unlawfulness on the Public Protector’s part during her investigation.

However, Mkhwebane’s spokesperson, Oupa Segalwe, has insisted that the Office of the Public Protector had conducted its investigation “by the book”.

As things stand, he said, Mkhwebane was, in terms of Ramaphosa’s notice of motion, called on to provide a record of her investigation, and she would do so in line with the court rules.

The rules stipulate that Mkhwebane provide this record or all the evidence she relied on in reaching her conclusions, which she set out in the report.

“She will do so in terms of the Rules of the Court by August 15. Once filed, the documents become public information and anyone can approach the registrar of the court to access that information,” said Segalwe.

He added that at this stage, Mkhwebane was unable to comment on the petition letter written by the president’s attorneys, which was shared with her attorneys, especially since it is addressed to the Deputy Judge President, not her. “The letter has been forwarded to our counsel, from whom the Public Protector will take advice on how to deal with the matter.”

The matter relates to the investigation into the R500 000 donation made by former Bosasa chief executive Gavin Watson to Ramaphosa’s CR17 campaign.

Mkhwebane was not expected to oppose Ramaphosa’s application to interdict the remedial action in the Bosasa case pending judicial review — in which the records of the decision would have to be handed to court.

On Thursday, Ramaphosa requested the court to seal and protect certain information that Mkhwebane might produce on the grounds that it might contain confidential information belonging to third parties, including bank statements.

“Furthermore, we have reason to believe that certain of the abovementioned documents may have been unlawfully obtained by the Public Protector,” Ramaphosa’s lawyers wrote.

They said the leaked emails showing that Ramaphosa was kept abreast of campaign donations – contrary to his explanation – might have formed part of Mkhwebane’s investigation and that these emails were unlawfully obtained.

“It would therefore be in the interest of justice for these emails to be kept confidential until the issue relating to how the Public Protector obtained these emails has been resolved,” wrote the president’s lawyers.

Regarding last week’s high court decision by Judge Letty Molopa-Sethosa – relating to Ramaphosa’s urgent application to interdict Mkhwebane’s remedial action in the case of former SA Revenue Service official Ivan Pillay’s early retirement – Mkhwebane said her office was yet to receive a copy of the ruling.

The Pretoria High Court dealt the Public Protector another legal blow by ruling that Ramaphosa had complied with her remedial action to discipline Public Enterprises Minister Pravin Gordhan.

Molopa-Sethosa further decided that disciplinary action by the president towards Gordhan should be suspended, pending the outcome of the minister’s application for a judicial review of Mkhwebane’s report.

Segalwe said that once Mkhwebane had been furnished with the judge’s reasons for her decision, she would be better placed to assess the options available to her, “meaningfully engage” and take an appropriate course of action.

In the interim, he said, “it is crucial that [Mkhwebane] records that she has been consistent in these matters and has always held the view that the president has an indispensable constitutional obligation to not only support but also protect the independence, dignity and integrity of the Office of the Public Protector.

“His decision in this matter to refuse, and/or his failure to implement, the Public Protector’s remedial action does not only undermine public confidence in the Office of the Public Protector, but, at its barest minimum, constitutes a breach of his constitutional obligations.”

Segalwe said the decision to oppose the interdict was “never taken lightly, haphazardly or randomly”.

“It is a measured decision, which she took after taking into consideration a value judgment, in line with the constitutional and legislative mandate of the Public Protector.”

He said the decision was taken after soliciting external, independent and objective legal advice, including the opinion of two senior counsels and a junior counsel.

The relief Ramaphosa was seeking, “which has regrettably been granted, is self-evidently contradictory”, said Segalwe.

“On the one hand, the president sought an order declaring that he has complied with the Public Protector’s findings and has implemented her remedial action. On the other, he sought an order to postpone his compliance with the very remedial action until after the review application.”

According to Mkhwebane, the appropriate course of action would have been for Ramaphosa to write to Gordhan, informing him of his intention to take disciplinary action against him in line with the Public Protector’s remedial action.

At that point, Gordhan should have responded to the president by informing him that he was taking the Public Protector’s report on review.

“The president would, at that stage, have an obligation to inform Gordhan that the review application was not enough to stop him from taking action and advise the minister to interdict him if he intended to stop the disciplinary process,” said Segalwe.


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