Public Protector Busisiwe Mkhwebane has suffered another defeat in court after her rescission application was dismissed, relating to President Cyril Ramaphosa’s ANC presidential campaign of 2017.
“The Constitutional Court has considered this application for rescission. It has concluded that the application should be dismissed as no case has been made out for rescission,” the judgment reads.
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.
‘Changed Executive Ethics Code’
The ConCourt majority judgment held that no law had authorised Mkhwebane to investigate the private affairs of political parties, and concluded Ramaphosa did not deliberately mislead Parliament about donations, which is in contrast to what the Mkhwebane 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.
Mkhwebane also suffered defeat at the hands of the ConCourt regarding her pending impeachment.
Last month, the apex court gave a green-light for the Ad Hoc Committee on the Section 194 Inquiry to proceed with the impeachment process against Mkhwebane.
Section 194 of the Constitution deals with the removal of a head of a Chapter 9 institution.
While the Section 194 committee has decided to proceed with the impeachment process – which could take seven months – Mkhwebane is set to launch a rescission application against the ConCourt’s judgment.
In a letter sent to Parliament, Mkhwebane said she wants the impeachment process against her suspended until the rescission is finalised.
Mkhwebane will be the first head of a Chapter 9 institution to face a parliamentary inquiry.