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The legal team at the public protector Busisiwe Mkhwebane has admitted that it “may have gone further than it should” in its controversial CR17 report.
During a two-hour interrogation from a full bench of the Constitutional Court, defender Muzi Sikhakhane – for the public protector – acknowledged yesterday that it was “possible in the newsroom, she could have gone further than she should have.”
“I am not going to present each and every aspect of this report that is perfect,” he said. But Sikhakhane argued that it still didn’t mean it should be set aside entirely.
The report was released last July and focused, in part, on a R500,000 donation made by Gavin Watson, the late former Bosasa CEO, to President Cyril Ramaphosa’s CR17 campaign for the top ANC job.
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It found that it violated the executive code of ethics by not disclosing the donation and misleading parliament, and that there was “merit” in the suspicion of money laundering.
Ramaphosa had the Pretoria Supreme Court review and annul the report in March, but now Mkhwebane has approached the Constitutional Court with a request for permission to appeal, in an attempt to save him.
However, his case appeared to be on shaky ground when it appeared before judges yesterday, with Sikhakhane put to the test and questions about his client’s powers to run state organs raised by Judge Zukisa Tshiqi.
In the high court, Mkhwebane was criticized for having referred her investigation to the national director of the Public Ministry (NDPP), Shamila Batohi, with the instruction to investigate possible money laundering.
“I’m quite happy with the reference, but can you go further and be direct?” Tshiqi asked yesterday, pointing to the correspondence between the office of the public protector and the NDPP in which the former insisted that “the public protector can order the state organs to take certain measures, and even indicate how they should be taken.”
Sikhakhane eventually admitted that Mkhwebane could not direct “in such detail” how the NDPP conducted investigations.
However, he was adamant that this did not make his corrective action illegal or totally irrational.
He was also questioned about what the high court found was Mkhwebane’s unlawful failure to allow Ramaphosa a hearing before finalizing his report, despite a request from his lawyers, and about his conclusions that he had misled parliament.
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