Both the public protector and Cyril Ramaphosa’s lawyers appear to have missed an important parliamentary decision that casts doubt on Busi Mkhwebane’s most serious findings against the president.

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One of the key planks of the public protector’s findings was that donations to the effort of the so-called CR17 campaign, to elect Ramaphosa as ANC president, constituted a financial interest that accrued to him personally.

She found Ramaphosa failed to disclose these donations to parliament and had exposed himself to the risk of a conflict between his official responsibilities and his private interests.

She ruled that this was a violation of the Executive Ethics Code and amounted to conduct inconsistent with his office, as contemplated by section 96 of the Constitution.

But in August 2017 parliament’s committee on ethics and member’s interests had examined almost exactly the same issue with respect to Democratic Alliance leader Musi Maimane – and found the committee could not make a finding because the parliamentary code was not clear enough on the issue of internal party campaign donations.

The code of conduct for members of parliament uses a similar scheme and wording to the Executive Ethics Code, which applies to the members of the executive.

Maimane accepted sponsorships for his campaign for the leadership of the DA at its 2015 electoral conference and initially made no disclosure of the benefit in his 2015 parliamentary declaration of interests.

The code makes it compulsory to declare “any direct financial sponsorship or assistance from non-party sources”, but Maimane argued he obtained no direct benefit as his campaign manager was in control of all the information, funds and donations received for the leadership campaign.

Parliament’s joint committee on ethics and member’s interests held he had violated the code, but Maimane successfully challenged that finding in the Cape High Court, which ordered that the matter be remitted for consideration by a reconstituted committee.

On 31 August 2017 the committee published its finding: “The code is vague on the disclosure of campaign funding. In the light of the vagueness of the Code, the Committee is not in a position to make a finding of non-disclosure in this case.”

The committee recommended the code be amended to clarify the regulation of campaign funding, something that has yet not happened.

Ramaphosa won a narrow victory against Nkosazana Dlamini-Zuma at the Nasrec elective conference in December 2017 and in February 2018 Jacob Zuma resigned as president after a tense stand-off with his detractors, paving the way for Ramaphosa to assume the highest office.

Nine months later, on 6 November 2018 during a question session in parliament, Ramaphosa was unexpectedly challenged by Maimane about a R500 000 payment into a trust account in October 2017.

Maimane alleged the payment was made on behalf of Ramaphosa’s son, Andile, by controversial businessman Gavin Watson, the chief executive of services company Bosasa, now renamed African Global Operations (AGO).

Ramaphosa answered that he had questioned his son about the allegation and his son had told him he had a consultancy contract with AGO and had provided services to the company.

However, ten days later Ramaphosa sent a letter to the speaker of the National Assembly to correct the answer. In this letter he said he had since been informed that the specific payment Maimane referred to was actually a donation toward his CR17 campaign.

Both Maimane and the EFF’s Floyd Shivambu lodged complaints with the public protector.

Maimane asked Mkhwebane to investigate whether Ramaphosa had lied to parliament and whether there was an improper relationship between Ramaphosa and AGO, due to the R500 000 passing through several intermediaries instead of via a straightforward donation to the CR17 campaign, thus raising the suspicion of money laundering.

Shivambu’s complaint specifically asked her to investigate whether Ramaphosa had misled parliament in violation of the Executive Ethics Code.

Mkhwebane used the single donation to extend her investigation to cover Ramaphosa’s entire ANC election campaign.

Unlike the parliamentary ethics committee, Mkhwebane had no trouble concluding that Ramaphosa had acted contrary to the code.

She ruled: “President Ramaphosa as a presidential candidate for the ANC political party received campaign contributions which benefitted him in his personal capacity. He was therefore duty bound to declare such financial benefit accruing to him from the campaign pledges. Failure to disclose the said material benefits, including a donation from AGO constitutes a breach of the Code.”

In her remedial action she ordered the speaker to refer her report to the parliamentary ethics committee, presumably so that they could discipline the president in terms of the code.

However, it is the same committee that found the provisions of the code too vague to apply to donations received in the course of intra-party election campaigns.

Ramaphosa has in the meantime challenged her findings, instructing his lawyers to apply to court to review and set aside the public protector’s report.

The missile

The Financial Mail has branded Mkhwebane “an inept hired gun” and Public Enterprises Minister Pravin Gordhan asserted in court papers that she has permitted her office and its extensive powers to be “weaponised” in a “political war” – charges she strenuously denies.

It is a proposition strengthened by the Constitutional Court’s recent finding she acted “in bad faith and in a grossly unreasonable manner” in relation to a separate matter involving the Reserve Bank.

But if Mkhwebane is an unguided missile, then she has also done us a favour by highlighting problems with the legal framework governing her office and the gaps in party funding disclosure.

The Nkandla judgement, delivered with passion and gravitas by Chief Justice Mogoeng Mogoeng, was celebrated as a necessary slap-down of then-president Zuma.

Zuma had attempted to evade the remedial action ordered by Mkhwebane’s predecessor, Thuli Madonsela, to the effect that Zuma personally pay a portion of the non-security aspects of the R250-million upgrade of his Nkandla homestead.

But the Nkandla judgement created a monster, which, if Gordhan is to be believed, has been weaponised by Ramaphosa’s enemies.

Before Nkandla, there was no legal clarity on whether the public protector’s orders of remedial action were binding. Indeed, Zuma simply ignored them while setting a up a competing process, in which first the police minister and then a parliamentary committee absolved him of any liability.

Mogoeng appeared to blow that discretion away, ruling that, “When remedial action is binding, compliance is not optional, whatever reservations the affected party might have about its fairness, appropriateness or lawfulness. For this reason, the remedial action taken against those under investigation cannot be ignored without any legal consequences.”

The only solution for anyone aggrieved by the public protector’s findings, the chief justice ruled, was to go to court to have her decision reviewed and set aside.

That ruling set up problems the Constitutional Court is now going to have to resolve – and it seems likely that the flurry of Mkhwebane’s findings around Gordhan and Ramaphosa himself are going to land quite swiftly at the steps of the apex court.

Those problems flow from the extraordinary power and discretion granted to the public protector: she can subpoena documents and witnesses; and she has the power to determine her own investigative process, which may be deep and rigorous in some cases and quite superficial in others.

She is constitutionally empowered to take binding remedial action on the basis of preliminary findings or prima facie findings; she can pursue the trail of suspicion from the public sector into the private realm; and she can order any “appropriate remedy”.

As Mogoeng himself put it: “Hers are indeed very wide powers that leave no lever of government power above scrutiny, coincidental “embarrassment” and censure…

“However sensitive, embarrassing and far-reaching the implications of her report and findings, she is constitutionally empowered to take action that has that effect, if it is the best attempt at curing the root cause of the complaint.”

In short, she is detective, judge, jury and executioner.

That makes the public protector’s office open to great abuse and manipulation. It makes her a potential political projectile.

While Mogoeng noted that her power to take appropriate remedial action was “wide but certainly not unfettered” he offered no substantive guidance on how those limits were to be defined or imposed, especially given that the grounds for a court review are more limited than those of an appeal.

His only counterbalance was to note that her office had to be “impartial and to exercise the powers and functions vested in it without fear, favour or prejudice”.

Given that, in the Nkandla judgement, the scheme the chief justice set out relied for restraint on the unimpeachable conduct of the public protector, it is odd that in the recent Reserve Bank case, he appeared to bend over backwards in a dissenting judgment to excuse conduct by Mkhwebane that all but one of his colleagues viewed as demanding the unprecedented censure of a personal punitive costs order.

The target

Some of the strengths as well as some of the weaknesses and, arguably, abuses of the public protector’s office are on display in the Ramaphosa report.

First, lawyers for the president attempted to argue during the course of her investigation that her whole investigation of his funding campaign was unlawful.

They argued: “The CR17 campaign and its fund-raising operations do not concern public administration or the exercise of public or statutory power. Therefore, the Public Protector has no jurisdiction in terms of the Public Protector Act to investigate the matter at all.”

Mkhwebane countered by citing The Public Protector v Mail & Guardian Ltd, the 2011 case in which the M&G and amaBhungane’s two managing partners reviewed and set aside a finding of then public protector Lawrence Mushwana.

That related to the Oilgate scandal, where payments from PetroSA were diverted to the ANC via a private company. Mushwana had exonerated those implicated by arguing he was not empowered to follow the trail of money once it left the public sphere.

The Supreme Court of Appeal disagreed, noting, in a passage cited by Mkhwebane, “Although the conduct that may be investigated is circumscribed I think it is important to bear in mind that there is no circumscription of the persons from whom and the bodies from which information may be sought in the course of an investigation. The Act confers upon the Public Protector sweeping powers to discover information from any person at all.”

Mkhwebane argues in her report: “The issues raised by [Maimane and Shivambu] are based on the donation made by Bosasa towards the CR17 campaign and were lodged against President Ramaphosa in terms of Executive Members’ Ethics Act as he was the Deputy President at the time.”

She claims, with justification, that she simply followed the money trail to discover whether Ramaphosa indeed placed himself at risk of a conflict between his private interests and his public duties.

But, as with other cases, it is the process of her investigation and the quality of her reasoning and remedy that raises questions about her bona fides.

Firstly, she appears to take little account of Ramaphosa’s other arguments, which are borne out by the view taken by the parliamentary committee in the Maimane case.

During the course of her investigation, the president’s lawyers argued:

* Ramaphosa’s initial statement about the purpose of the R500 000 Bosasa payment – that it was for his son Andile – was an innocent mistake made also by Maimane when he posed the question to which Ramaphosa responded. It was corrected by Ramaphosa when he became aware of the facts.

* Ramaphosa tried to avoid placing himself at the risk of a conflict by agreeing he would not be told who the donors were and how much they had given.

* No money was taken from the campaign and given to the president or his family. In fact, the president contributed R6.2-million and loaned the campaign a further R31-million.

*  The president was not required by the Executive Ethics Code to declare the donations to CR17. The donations belonged to the campaign and not the president; it owned and controlled the money.

* This interpretation is borne out by the fact that other politicians, across party lines, also do not declare the contributions to their election campaigns;

* If the public protector were to censure the president for his failure to declare this income, she would also have to extend her investigation to all other politicians who failed to disclose the donations made to their party-political election campaigns.

This last point is surely correct. We all deserve to know the role that money plays in our politics across the board.

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In addition, the ANC’s role as a dominant party means that its internal leadership contest is like a US presidential campaign and has a direct impact on national politics. In that case it also should make no difference if the candidate is an MP. If Dlamini-Zuma had won, she would have carried with her the same potential conflict that Mkhwebane alleges is attached to Ramaphosa, despite not having been an MP at the time. Indeed she still does carry that baggage, given that she is a minister.

The genesis of the power and latitude granted to the public protector was that she was institutionally a problem solver, not a prosecutor; a protector, not a persecutor.

The extraordinary language used by Mogoeng in the Nkandla judgement betrayed the unrealistic expectations placed on her office: “She is the embodiment of a biblical David … who fights the most powerful and very well-resourced Goliath… The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.”

But what happens when David turns and fights for the Philistines?

Mogoeng – and the court as whole – should have foreseen that possibility. Now they must deal with that reality.