Mkhwebane says that the ConCourt got it wrong
As expected, Public Protector Busisiwe Mkhwebane has approached the Constitutional Court to request that it rescind its finding that she had ‘changed’ the Executive Code of Ethics as part of her investigation into the ‘CR17’ campaign funding investigation.
TimesLIVE notes the court ruled this month that Mkhwebane changed the wording of the code to conclude that President Cyril Ramaphosa had inadvertently or deliberately misled the legislature.
It made the finding as it dismissed Mkhwebane's appeal against the judgment of the Gauteng High Court (Pretoria), which in March last year set aside a report in which she found Ramaphosa misled Parliament about funding for his campaign to be elected ANC president in 2017.
The Constitutional Court also held that both the Constitution and the Public Protector Act do not empower Mkhwebane to investigate the private affairs of political parties.
In a statement yesterday, Mkhwebane's office confirmed it had approached the apex court on Friday, to apply for a ‘rescission, varying and/or reconsideration’ of its ruling.
‘The application centres on the patently erroneous finding that the Public Protector, Advocate Busisiwe Mkhwebane, “changed” the Executive Code of Ethics, replacing the word “wilfully” with “deliberately or inadvertently”.
This finding was pivotal to the decision to dismiss the appeal.
'It will be argued respectfully in court that, in fact, the court relied on the old version of the code, which was published in 2000 while Advocate Mkhwebane invoked, verbatim, the provisions of the amended version of 2007, which the Constitutional Court has itself endorsed as recently as March 2016 in the EFF v Speaker of the National Assembly case,’ her office said.
Her office said there were implications of the case being dismissed on her ‘personal and professional capacities’.
‘The dismissal of the appeal also has serious implication for the work of the office, which is the sole enforcer of executive ethics under the Executive Members’ Ethics Act (of) 1998,’ the statement said, according to TimesLIVE.
In her affidavit, Mkhwebane pointed out that the Constitutional Court had ‘accepted and affirmed’ the 2007 version of the code – upon which she relied to make her finding on Ramaphosa’s submissions to Parliament about his campaign funding – when it made its judgment on former Public Protector Thuli Madonsela’s ‘Nkandla report’.
‘During the investigation into the well-known Nkandla matter, Advocate Madonsela admitted that she had relied on the 7 February 2007 version of the code. When the matter served before this honourable court, Advocate Madonsela placed reliance on the 2007 code and this same court accepted and affirmed the 2007 code was the correct code applicable,’ she said.
She included two other examples of where Madonsela relied on the 2007 version of the code to make ‘adverse’ findings in her reports.
She said the Constitutional Court abandoned its recognition of the 2007 code when it concluded that she had ‘seriously misconstrued the code’.
She said the Constitutional Court erred in her case by departing from the precedent it had set itself when it acknowledged the authority of the 2007 code.
Mkhwebane added that though her rescission application was ‘not intended to constitute a back door appeal’ against the apex court’s decision that the Office of the Public Protector was not entitled to investigate the campaign funding, she held the view that the court came to the incorrect conclusion on that aspect as well.
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