REPUBLIC OF SOUTH AFRICA INTHE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA = CASE NO: 55878/2019 1) REPORTABLE: YES/NO (2) OF NIERESTIO OTHER JUDGES: YES/NO 3} REWSED. Te manci2020 THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fist Applicant THE SPEAKER OF THE HATIONAL ASSEMBLY ‘Second Applicant And ‘THE PuaLIC PROTECTOR Fst Respondent THE NATIONAL DRECTOR OF PUBLIC PROSECUTIONS Second Respondent ‘THE NATICNAL COMMISSIONER OF POLICE “Third Respondent THE ECONOMIC FREEDOM FIGHTERS Fourth Respondent ‘THE FINANCIAL INTELUGENCE CENTRE Fifth Respondent AMABHUNGANE CENTRE FOR ISVESTIGATIVE JOURNALISM HEC Sixth Respondent ‘THE INFORMATION REGULATOR ‘Amicus cure | Summary: Review ~ Powers of the Public Protector Public Protector extending scope of investigaion ta include funding of C17 campaign — Publ Protector’s powers lie in section 182 of the Constiuion ~ Investigative powers determined by sections 6(4) and 6(7) of Pubic Protector [het 23 of 1964 ~ Further eaction 3(1) of tha Ethes Act sving powers to Investigate ~ Public Protectors sphere of competence, of Juredicion limites to malters involving state affairs, public ‘Séministalon: the exercise of pull powers oF functions; publ funds, or conduc occurring in, of Concomng tne affers of, any of tre spheres of government ~ actviies of CRIT campaign by ature ste activites of menbers of private group of people and not slatulry body ~ Public Protector having no powerto nveetigate donations made 19 CRIT campaign: Failure to Disclose and misbacing Faslament ~ Erecutve Members’ Ethics Act 92 of 1996 ~ Executive Code ~ fincng that President violated Execulve Code by misieading Parliament ~ Public Protector demonstrated fundamentaly awed approach to the principles underpinning question ‘whether President violated Code by wilfuly and "inadvertent? misleading Parliament - word “inadvertently not contained in Code ~ nether the President breached the Executive Code by {aling to csclose the CR17 campaign donations ~ Pubic Protecor's conclusion that President breached Executive Code by faling {© dgcioee donations te CR17 campaign itratonal and ‘unlawfulMoney laundering fnaing that there was prima facie suspicion of money laundering nat based on evidence at Public Protectors isposal and iational Remedial measures Imposed by Public Protector ~ measures directed at Speaker constitute Unlawful interference with the Speakers constlutional role — Public Protector has no power to ‘rect the NDPP to investigate any ctiminal offence and how to go about doing tis Challenge to the constutional valid of the Executive Code — basis of challenge that found that Code does impose duty of disclosure of campaign donations then Its consttutonaly deficient — bald ~ Executive Members Ethics Act does not contain duty ofcsclosure ~ Code derives ts authority from the Act ~ therefore challenge is misplaced it must be directed atthe Executive Members Act SUOGMENT THE COURT: INTRODUCTION 4. The genesis ofthis matier was a pariamentary question put othe President of he Republic of South Afica (the President, and fst applicant) in the National Assembly by the then leader of the official opposition, Mr Musi Maimane (Mr Maimane) on 6 November 2048, The question concemed 2 payment of R500 000, 00 into an account allegedly fr the President's son. The payment was ‘loged to have been from Mr Gavin Watson, who was the chief executive officer ‘of Aldean Global Operations (AGO), formery called Bosasa 2. The President answered the question on the spot. He explained that his son had f business contract with AGO and thatthe payment was related to work he had undertaken for that compen. Approximately one week later, the President wrote to the Speaker ofthe National Assembly to explain thal he had provided incorrect information in response to Me Maimane's question. He explained tha the payment had been made on behalf of ir Watson to the CR17 campaign. The CRI7 campaign was an inilative conducted during the run-up to the 2017 intemal party 2clections for the Aftican National Congress (ANC). The CR17 campaign supgorted the President's candidature forthe position of president of the ANC. At that ime, he was the Deputy President of the ANG and of the country 3. These events gave rise to two complaints to the Public Protector.’ One was from Me Maimane, and the other was from Mr Floyd Shivambu (Me Shivambu), a member of parliament for the Economic Freedom Fighters (the EFF). The Public Protector investigated the complaints. She engaged with several parties in the course of her investigation. Ulimately, sho released her “Report on an investigation inio @ violation of the Executives Ethics Code through an improper relationship between the President and Aican Global Operations (AGO), formery mown as Bosase (he Report). The Public Protector made three serious findings agaist the President in her Report. They included a finding that the President had misled Parliament; that he had failed to disclose donations to the CR17 campaign: and that her investigation supported a prima facie suspicion of money laundering. The Report included cerisin remedial action directed at the Speaker of the ational Assembly (the Speaker), tne National Director of Public Prosecutions {the NDPP), and the National Commissioner of Police. 4. This Judgment concems Part B of an application instituted by the President. He seeks to review and set aside the Report on a number of grounds. Part A ofthe appication was directed et suspending the operation of the remedial action contained in the Report pending the finalisation of the review proceedings. That appication was subsequently granted by agreement “This common caues that the Public Protector cowed! a hel complaint. However, because iteame from a rmernser the publ and nota menor ofthe Netlonal Asser, she cd nol proceed to ineeeigae i. The {fav conplan has no relevance ote sues before te cour epone 37 of 2018720,5. The Speaker is the second applicant. She seeks to review and set aside the remedial action directed at her. The NDPP, the second respondent, also seeks to review and set aside the remedial action directed at ner. The Public Protector opposes the review, as does the EFF, which was granted leave to intervene asthe fourth respondent. The Financial Inoligence Centre (the FIC) is the fh respondent, The FIC inal intervened in the application in order to refute the contention made in the Presidents supplomentary affidavit that i had acted unlawfully in providing the Public Protector with information unrelated to her request tot However, the Prasident did not persist with this contention, and the FIC uitimetely adopted a neutrat poston in the itigaton and sought to make submissions for the assistance of the Court, The same applies to the amicus curige, the Information Reguiator. Final, the amaBhungane Centre for Investigative Journalism NPC (amahungane) was granted leave to intervene as the sith respondent. AmaBhungane has extended the scope of the issues in dispute in the matter by launching a conditional constitutional challenge against the Executive Ethics Code (the Executive Code). The constitutional challenge is conditional on this Cour making certain findings regarding the proper interpretation ofthe Executive Code. This issue wil be deat with towards the end of this Judgment The National Commissioner of Police, although cited as the third respondent, has played no active role in the proceedings, 6. Both the President and the Public Protector hold positions of high constitutional significance. The President ie the Head of State. He Is expressly enjoined to ‘uphold, defend and respect the Constitution His isthe highest office in the tana 5 Geeton #9 ofthe ConstutonHe is the first citizen and he occupies a position indispensable for the effective governance of our democracy.* 7. The Public Protectors office was established as one of the Chapter 8 institutions under the Constitution to stengihen our constitutional democracy.® She has the power to investigate any improper conduct in siate affairs in the public ‘Administration, Her office i independent and is subject only to the Constitution and the law® Her investigative and remedial powers target even those “in the ttvone room of execute raw powor"7 She is empowered to take binding and fective remedial steps,” end she has extensive investigative powers under the Publi Protector Act (the PPA)* These invastigative powers are ‘not supposed fo bow down fo anyone’. In keeping withthe constitutional significance of her office, the incumbent of the ofce of Puble Protector is required to be a highiy- skilled professional, She must be (among ethers) a Judge ofthe High Court, oF an admited attorney or advoeais with a least ten years of practice experience in that capacity 8. A legal dispute hetween these two bearers of high office wil alvays be of constitutional impor. We were addressed in detail on high-level principles of ties, moralty and constituilonslsm, and en the far-reaching powers ofthe Public Protector against the most powerful. In matters of this nature, itis as well to be reminded of these salutary principles. It is equally important, however, to remain facused on what this case ie about, It is ebout the Public Protector’s report and + Geoname Foodom Pighersv Speaker, sions Assembly & Oihers 2016 (8) SA 80 (CO) at para 20 (EOF v Speakon Seaton 1613] of be Consttuton Secon 18112) ofthe Consttuton " EFF w Spakor at pars 88 ‘NEFF v Speokor at para G7 ‘fet 25 of 1804, sechons 78 7A TEE v Spoor at para 88the competency of the findings she made. It about the particular facts that served before her, and how she applied the relevant legal principles to those facts. Do the Public Protecto’s findings stand the test of constitutional rationality, as she contends? Or did she exceed the limits of her constituional jurisdiction in her investigation and her findings, as the President contends? At the heart of the case is the question of the outer-imits of the Publle Protectors powers under the Constitution and the PPA. THE QUESTION AND RESPONSES 9. The starting point of the maiter is the question put by Mr Maimane to the President in the National Assembly, and the President's responses to i Mr Maimane's question was ‘Mr President, here | hold a proof of payment that was transferred to say that 500 000,00 had to be transferred to @ trust account called EFG2 on 18 October 2017. This was allegedly put for your son, Andie Ramaphosa, (nterjections). Following on thet, I have a sworn affidavit from Peat Venter, Sfating that he was asked by the chiof executive offer of Bosasa to make this transfer for Andie Ramaphosa. Mr President, we can't have family members benefiting. {Iotefjactions). | would want to ask you, right here tediay, that you bring cur nation info confidence and please set the record straight on this matter. Thank you very much. (Applause)” 10, The question was posed alter hr Maimane had asked the President a question about VBS Bank, Under the rules of debate of the National Assembly, Mr Maimane ought not to have asked a follow-up question that was unrelated to the ctiginal question posed. Nonetheless, the President elected to answer Mr -Maimane’s question. He did so in the following terms: "Speaker and the Hon Maimane, this matter was brought to my attention, It was brought fo my attention some time ago. | proceeded to ask my son what this was all about. He runs @ financial consultancy business, and he consults for a number of companies, and one of those companies is Bosasa (interjectons) .. where he provides services on entrepreneurship, particulary‘on the procurement process. He advises both local and intemational companios. Regarding this payment, | can assure you, Mr Maimane, that | asked him at close range whether this was money obtained legally, unlawfully - and he Said this was @ service that was provided. To this ond, he actually even Showed me a contract that he signed with Bosasa. (ineyjectons). The Contract also deals wth issues of integrity, issues of ant-caruption, and all that, He is running a clear and honest business as an advsory service, as the has been trained as.4 consultant with his business science qualifications. | >have had no idea or inkling whatsoever at what he has informed me, that this ‘money was obtained legally. (Ft tums out = Mr Maimane, 1 can assure iit tums out that there is any ilegality and corruption in the way What he has dealt with this matter, { will be the fist, the absolute fist, to make sure that he becomes accountable... (Intejections) .. even ifit means ... Applause) . ‘can assure you, even ifit means that | am the one to take him to the police station, That I willbe able to do. (Interjections).” 11, This was on 6 November 2018, On 14 Noverber 2018, the President wrote @ {olow-up letter to the Speaker. The text of the letler reads as follows: “I wish to draw your attention to the fact that during my apoearance in the National Assambly when | was answering questions on 6 November 2018, | inadvertently provided incorrect information in reply to @ supplementary ‘question Following my response to Quastion 19 on VBS Mutual Bani, the Leader of the Opposition asked! me about 2 payment that had been made on behalf of ‘2 Mi Gavin Watson fo my son, Mr Andile Ramaphiosa. My reply t0 the question was based on the information ‘hat was at my disposal at the time, regarding @ business relationship that my son's company has with the company Altica Global Operations. Lis true that my son's company does indeed have @ contact with Alica Global Operations for the provision of consultancy services. The said consultancy services are provided by my son's conpany to Affica Global Operations in @ number of African countries other than South Africa, He informed me that South Africa was specificaly excluded to avoid a potential confict of interest. Since my reply in the National Assembly, | have sougnt to get more information regarding this matter | have bean subsequently informed thal the payment referred to in the ‘supplementary question by the Leader of the Opposition dees not relate 0 that contract.2 13. | have been told that the payment fo which the Leader of the Opposition referred was made on behalf of Mr Gavin Watson info a trust account that was used fo raise funds for @ campaign established to support my ‘candidature forthe Presidency of the African National Congress. The donation was made without my knowledge. | was not aware of the existence of the donation af the time that | answered the question in the ‘National Assembly. In his response to the Public Protectors notice fo him under section 7(8) of the PPA, the President explained the context of his orginal response and his follow-up lotior. He said that the National Campaign Manager of the R17 campaign, Mr Bojani Chauke (Mr Chauke), had tol him in early September 2018 about euours that his son, Andile Remmaphosa (Andie), had received a payment of R00 000.00 from AGO. ‘This prompted the President to ask his son about the matter. Andile told the Prosident that he had an arm's length business relationship with AGO, through his company Blue Grane Cepital (Pty) Lid. He had signed an Advisory Mandate with AGO in December 2017, and an Anti-Comuption and Bribery Policy in January 2018, The President said that Andile had shown him both of these documents, ‘The President told the Public Protector that when Mr Maimane asked him about the payment to Andie of R500 000.00, he assumed it concerned Ancile's business relationship with AGO. it was on this basis thet he gave his intial response to Mr Maimane in the National Assembly on 6 November 2018. However, after he had left the National Assembly on that day, one of his advisors, Mis Donne Nicol (Ms Nico), told him that thatthe account that Mr Maimane had referred to, EFG2, was an attomey’s trust account that had been used by the CR17 campaign to raise funds, Ms Nicol was on the fundraising commitae of the CR17 campaign. ‘The President was advised that the amount had not been paid to his son Andie for‘work undertaken for AGO. In Fact, the payment was a campaign donation from Mr ‘Watson, Armed with this information, the President says that he wrote to the National Assembly to set the record straight. ‘THE COMPLAINTS, 14, 6 16. On 26 Novernber Mr. Maimane filed his complaint with the Public Protector. The ‘main bady of the complaint read! “On 6 November 2018, during @ question session in the National Assembly, | resented President Ramaphosa with the documentary proof of the payment fand the swom statement that alleges the money was intended for his son ‘Andie. The President conlimed that he was aware of the payment but had been satisfed that it was @ lawful payment for services rendered by a consultancy fim owned or operated by Andie Ramaphosa. ‘Subsequently, and on or about 16 November 2018, the President sent a letter 0 the Speaker of tha National Assembly purporting to “corect” the ‘answer he gave in the National Assembly ten days earlor... In this feller of Somrection the President reveals that the payment was acivally a donation foward his campaign to be olecied ANC President in December 2017, Kis my concem that the set of facts related above reveal that there is possibly an improper relationship existing betwaen the President and his family on the one side, and the company African Global Operations jformerty Bosasa) on the oiher side. The nature of the payment, passing through several intermediaries, does not accord with @ straight foward donetion and rises the suspicion of money iaunderig. The alleged donor is further widely Feported to have received bilions of Rands in state lenders, often in irregular fashion, tis further my concern that the President may have lied to the National ‘Assembly in his reply fo my question on 6 November 2018." Mr Maimane asked the Public Protector to investigate the complaint with utmost urgency. He said that another President could not be allowed to be captured, and thatthe true facts of the matler needed to be established with all due haste, Mr Shivambu’s complaint was fled in January 2019. Itwas a complaint based on section 4(1) ofthe Executive Code, He asked the Public Protector to investigate:17 18 19, “(a) whether the statement made by the President in the National Assembly ‘on 6 November 2018 that he saw a contract between his son's company and ‘Afican Global Operations is rue, and that a contrac indeed does exist; and () whether the President deliberately misied Pariiament in violation of the Executives Ethics Code." E NON BY THE PUBLIC PROTECTOR AND THE PRESIDENT'S PONSE Having received the complaints, the Public Protector went about investigating thon, She issued subpoenas to a number of individuals, including Mr Wetson, Mr Venter, Ms Nicol, Mr Cheuke, ii Motlatsi (another organising member of the R17 campaign), Mr Andile Ramaphosa, and the law firm Edelstein, Faber and Grobler inc. Except for Andis, she interviewed all of these individuals. She also obtained affidavits from them, including Andie ‘The Public Protector requested the FIC for thelr assistance in providing information on banking transactions. On receipt of information from the FIC, she subpoenaed Absa Bank and FNB for bank staternents from the accounts associated with the CRI7 campaign In addition, the Public Protector received responses from the President in respect of the complaints, and in respect of her section 7(9)@) notice to him."” The President requested of the Publle Protector that he be permitted to eross-examine Mc Watson, in terms of section 7(8)() of the PPA. It is common cause thatthe President was unable fo do so before the Public Protector released her Report Sector 79)8) prow “iit spears fo Ihe Public Protector curing the course ofan investation that any person i being ‘oscsted inthe mater being mwostgated ans that auch ipleston may ba to th dobent of at ferson or thal an advetee tnang pertaining fo tat peaon may resut the Puble Protect chal {Mod such person 29 apperumty fo respond in connection tarowth, in any manner tat may be ‘roedientundor the croumatances” 1920 at 2, 23. ‘The patios differ on the reasons for this, The President also requested access to the FIC information provided te the Public Protector, but this was denied, Ik was evident from the Publc Protector's section 7(8)a) notice that she had extended the scope of her investigation to ince, not only the alleged misleading of the National Assembly by the President, and the R500 000.00 payment to EEFG2, but also the flow of funds forthe ene CR17 campaign. She stated in her notice that her “preliminary view" was that “there is merit othe allegation relating to the suspicion of money laundering’ in his response to the section 7(}(a) noice, the President contested the Public Protector’ jurisdiction to investigate the CRI7 campaign, He contended that her jurisdiction was limited to pubic administration and the improper exercise of public power, He asserted that the CR17 campaign fll ouside of his ambit. As regards misleading Parliament, the Prasident said he had not done so: he had answered the question put by Mi HMaimane tuthfuly and in accordance withthe information available to him atthe time ‘The President denied that he had placed himself at risk of a confict of interest between his official dutlos and his prvate interests. He also denied that he had Used his position to enrich himseif or his son through an association with AGO. He told the Public Protecor that the R500 000.00 payment by Mr Watson was @ donation to the CR17 campaign, and that he had been unaware ofthe donation at the time, He contonsed that he had no duly under the Execute Code to disclose campaign donations to the CR17 campaign. {In support ofthis, the President gave the Public Protector a detalled account of the CRIT campaign. He made several important factual averments in this egard nu23.1. He explained that the origin and purpose of the CR17 campaign as follows: “The CR17 campaign brought together ke-minded individuals to support the renewal of the ANNC and the candidature of the President as the ANC president, and many others for election fo the ANC's NEC, The campaign had broad poltcal objactives, including the unity Of the ANC and the restoration of its valves and character. Through its communications and massaging, CRT sought to engage ANC members and supporters in poliical debate and promote organisational development and unity in the ANC.” 28.2.0n is website, the CR17 campaign called on +... a ANC members andl supporters who share this objective to work togetier — within the structures, practices and discipline of the ANC —to build @ united, strong and mass-based movement.” 28.3. The President explained that "From the outset, CR17 determined that the campaign should not ocus simply on promoting an individual's candidacy but should also present & vision for the ANC and the country by electing an ethical leadership collect 28.4.The President's response inclided an outline of the governance and governance structures of the CR17 campaign. As to the role of the President “The President was not involved in the management or the operations of the campaign. He did not paticipate in organising, ‘communications, administration, and security coordination of the ‘campaign. * 23.8. Further: (the) CR17 management end Fundraising Committee... decided that the President would not ba directly involvedin the solicitation of funds for the campaign, R236.And “The President was generally not aware of the donations, except for his own donation as well asthe contributions of James Motats, Sitso Dabengwa and Donne Nicol.” 23:7. The President explained that he had agreed with the CR°7 campaign that those involved would nat tell him about any of the donaticns they received rom anyboy: “it was probably not necessary for them to go that far but it was @ wise precaution. 1 precluded any suggestion that the President's ‘goodwill can be bought 23.8.As to the donation of R500 000,00 by Mr Watson, the President, explained that itwas Mr Motlats! who had approached Mr Watson for a donation, as he (Me Motlatsi) knew Mr Watson, and did nat aiscuss this wah the President Ir Watson made the donation into te EFG2 account on 18 October 2017. The President was not made aware ofthis donation unt ater the President responded to Mr Maimane's question on 6 November 2018, He told the Public Protector that he hia no relationship with AGO nor wih Mr Watson, 23,9. The President said that he had also made donations and loans to the CR17 ‘campaign, along with other ANG members and non-member supporters of the campaign, Further, the costs of running the campaign were significant. 23.10, He explained the link between the bank accounts and entities that had been the subject of the Public Protectors investigation: B28.10.1. EFG2 was the tus account established by the CR17 campaign at the law firm of Edelstein, Faber and Grobler Inc. Initial, donors made nations to the CR17 campaign into this account. A 2% commission ‘was paid to Edelstein, Faber and Grobler Inc on all amounts deposited by donors into the EFG2 account. 23.102. ABSA Bank later advised EFG and the CR17 campaign that it should not use the EFG2 trust account on @ regular basis to make payments to service providers of the CRA7 campaign. 23.10, Consequently, the Ria Tenda Trust (Ria Tenda) was estabisned, with a trust deed duly lodged with the Master. A bank account with ‘Standard Bank wes opened for Ria Tenda It was mandated to receive onations on behalf of the CRI7 campaign. Payments to service providers were also made trom this account. The President did not fesiablsh the Ria Tende Trust He hed no role in directing its ‘operations. These were done separately and independently of him. 28.10.4. In addition, Ri Fenda entered into a service level agreement with Linke Environmental Services (Linkd). This is @ private compary, independent of tie CRI7 campaign. itolfers various services to private and public companies. Through Ria Tends, the CR17 campaign engaged the services of Linkd fo take responsibilty for the payment of the campaign's salaries, related financial services, administrative assistance to the campaign, and also to make payments to service providers. Inthe Presidents submissions to the Public Protector, he states that uw‘Ail monies received by Linkd for the purposes of the CR17 campaign were disbursed according fo an approved budget and fon instruction from the CR17 campaign management. These transactions have been audited and verified by the company's auditors" 23.10.5, The CRI? campeiga incurred a range ef expenses. The President deseribed these as including office rental and administration, travel end commodation, salsies, marketing and communication campaigns, media monitoring, research and secutly. Besides, the CR17 campaign had to pay the cost of hiring venues for rales, stipends for organisers, branch meetings, T-shirts and related campaign items. These expenses were incurred at both the national and provincial level 2310.6. The Presiden’s response to the Publle Protector set out, in some detail, the payments to EFG2, Ri Tenda and Link 29.407. The President submited to the Public Protector inthis regard that “Therofore, the ‘arge sums of money’ referred to by the Public Protector wore perfectly lawful, did not breach any laws, wore ‘necassary forthe overall running of the campaign and the payments id not constitute maladministraion. No monies went to. the President or bis family. The President, to the contrary was one of the donors f9 the campaign = 22,40.8.The President also desl wth the Cyst Ramaphosa Foundation (the CRF), which the Publ Protector had identi as one of the entties to have received payment from the GRIT campaign. He explained the origins ofthe CRF as a charitable organisation he had set up originally as the Shanduka Trust, He confimed that nether he nor any family members were beneficiaries of the CRF. On the contrary, he was a 15donor. He explained further that CRF had been reimbursed for ‘expenses it had incurred on the CR17 campaign's behalf 24 In short, the President submitted to the Public Protector that he was not guilty of any of the complaints raised against him. He also called on the Public Protector to afford him a hearing in respect of any remedial action she may have been contemplating in her final report. 25. The Public Protector interviewed Ms Nicol, Mr Mollatst and Mr Chauke, They confirmed the President's submissions regarding the CR17 campaign. Ms Nicol told the Public Protecor that she had approached the President with the idea of raising funds for the campaign. She confirmed that those involved took the decision not to reveal details of the donors to the President. She also told the Public Protector that donors were told as @ pre-condition to donating that they should expect no favours in return ‘THE PUBLIC PROTECTOR'S FINDINGS AND REMEDIAL ACTION 28. For purposes of her investigation and report the Public Protector consolidated the ‘wo complaints. She identified the following issues as the focus of her investigation (a) Whether 00 08 November 2018, during question session in Parliamont President Ramaphosa deliberately misled the Nationsl Assembly and thereby acted in violation ofthe provisions of the Executve Ethies Code and the Code of Ethical Conduct and Diselacure of Members” interests for the National Assembly and Permanent Counei! Members (©) Whether President Ramapnosa improperly and in violation of the provisions of tho Executive Ethics Code and Disclosure of Members’ interests for the National Assembly” and Permanent Counol Members expased himself to any situation Involving the risk of @ conc! between his official duties and his private interest or used is poston fo enrich himself and his 800 through businesses owned by African Giobal Operations. (6) Wether there is an improper relationship between President Ramaphosa and is femty on the one sie, and the company Attcan Global Operations onthe other Sido dua fo the nature of the R500 000.00 payment passing through several 16a1, 28, 29, “the misleading of Parliament issue", the intermediaries, instoad of 9 siraighforward donation fo the CR17 camoaign thus raising the suspicion of money launderin* For the sake of simplicity, we refer to the issue identifed under paragraph (a) as. ue identified under paragraph (b) as the disclosure issue,” and the issue under paragraph (c) as “the money laundering isaue". It is necessary to set out in fll the Public Protecto’s findings a regards each ofthese issues, in respect of the misleading of Pariament issue, the Public Protector made the following findings: “74.4 The allegation that on 08 November 2018 during question session in Parliament, Preskiont Ramapiosa deliberately misled the Naional Assembly, 1s ‘substantioted, 7.4.2 Presisent Ramaphose's slatement on 08 November 2048 in his reply to Mr aimane’s question sibet defective in terms of tho Rules ofthe National Asser, ‘was misteading, 28 he also conceded in his correspandonce ‘o iy office on 0% February 2019, and even in his subsequent letr fo the Speaker of the National ‘Assembly an 14 November 2018 where he sought to corect the Incorrect Infermation he ad provided inthe National Assembly. 7.1.3 Consequenty, Prosidon! Remaphosa’s reply was in breach of tho provisions of paragraph 2 3a) of the Execulve Ethics Code, the sfardord of which includes elborate and Inadvertent misteading of the Legislature. Ho delberstly misled Pariment, in that fe should have allowed iso suffelent tire to research an 2 welinformod response 7.1.4 | therefore find Present Ramaphosa's conduct as referred to above stthough ‘ostensibly In good faith, 19 be inconsistent with is offce as a member of Cabinet ‘and therefore m violation of section 96(3) of th Constution as referred to above.” [As far as the disclosure issue is concerned, she found as follows °7.2.1 Tho allegation thet President Ramaphosa improperly and in violation of the provisions of the Executive Eines Code and Disclosure of Members’ interests for {ne Netional Assembly and Parmarent Couey Mombors expased himself f0 any ‘Suation mvolving the sk Of 8 Contict Peiween Nis omar responsiaNues and DS private intorests or used his poston fo enrch himse and his son through businesses onned by AGO, fs substantiated, 7.22 In light of the evidence before me, it can be safely concluded that the ‘campaign pledges fowords the CRT campaign were some farm of sponsorship, ‘and that they were direct fancel sponsarshpp or assistance rom non-party sources uv‘other than a famiy member er permanent companion, and were therefore, Denefts ‘ora matenal nature to Present Pmapnosa. 7.2.3 President Ramaphasa as 9 presidental candiato forthe ANC poltcal party ‘received campaign contributions which Benefited him in his personal capacity. He twas therefore culy-bound to declore such fnancial bonoft acorurg to hin from the Campaign pledges. Failure lo disciose the said material banofts, including a ‘onation fram AGO consis a breach ofthe Code. 7.2.4. have evidence which indicates that some ofthe money colcted through the GRI7 campaign trust acount was also transfered Info the Syl Ramaphosa Foundation account from where was also ransfored to other beneficiaries. 7.25 President Ramaphosa at the time of receipt ofthe donations, was the Deputy President of the Republic of South Afica and 2 Member of Parlament, He wes therefore tound by the Cade of Ethical Conduct and Disclosure of Members Interest for Assembly and Permanent Counc! Members, 0 dectare such fancial inorest 7.26 | therefor, find President Ramaphosa's flr to disclse financial interest Which accrued to him, a 9 resi of the donations racelved towards the CRIT ‘campaign f0 be in violation of paragraph 2 of the Executive Eihics Code, and ‘accordingly amounis to conduct that fs inconsistent with his offce as member of Caninot, a8 contemplated by section 26 ofthe Constitution” 30. Finally, concerning the money laundering issue, the Pubic Protector made the following findings: “7.3.1 The alegaton that there is an improper relationship between President Ramaphose and his faraly on the one side, and tho company Altcan Global ‘Operations on the ater side, duo to the nature of the 2500 300, 00 payment [passing through several inormediares, instead of a straight donation towards the C87 compaign, tus raising suspicion of money laundering, has meni 7.32 | have taken inta account ofthe facts as well as prima facie evidence before fim, Jam therefore of tha vow that thera Fs mont to the allogation relating fo the suspicion of money laundenng as alluded fon the compat lodged with my afce 7.2.3 However, | have decided to refer this matter (othe relevant insition for furtnor probing 22 provises fr in sect 6(4}(0)() ofthe Put: Pintactes Act which Sates that Ihe Publle Protecior may, "at any tine prior (0, ding or after an investigation, it ha or sh i of he opinion that the facts disclose a commission ofan ‘offence by ny person, bring the matter lo the notice of the velevant auinonty charged van prosacutions 31. The Public Protector also made certain “observations” regarding proceedings in the National Assembly. She observed that some members of the House did not sive sufficient prior consideration to questions, or to the responses they are to provide, She also observed that the Rules of the National Assembly were silent wfon whether members are permitted to make subsequent writien submissions to correct or clarify the oral replis they have given. 32, The Public Protector directed the Speaker to take the following remedial action to remedy the impropreties she had identified “8.1.1 Within 30 working days of receipt of this Repart refer His, Excoloncy President Remaphosa's violation ofthe Code of Ethical Condlct and Disclosure of Mombers Interests for Assembly and Parmanent Couns! Members to the Joint Commitee on Ethics and Membors leferests for consderation in terms of the provisions of paragraph 10 ofthe Code. 2.1.2 Within 30 working days of roost ofthis Report, consider within her discretion, for deltseratins by Manibors of Pariament in term of ho Rules of the National ‘Assombly, 1808s relating fo my observations under paragraphs 6:1 to 66 of this "Report forpossibe review and amendment thereat 6.1.3 Within 30 working days of recsipy of this Report, Semand publication of a donations received by Presiden! Ramaphose because as he was the then Deputy Prasidon, he 'S bound 10 deciare such financial inferests lato the Members’ ‘registerable interests register in tho pint of accountability and transparency" 33. The NDPP was directed to: °8.2:1 Within 30 working days of receipt of this Repor, take note of the observations contained in paragraph 731. 93. wel! a8 the recommendations contained in paragraph 7.33 of this report, and in tine with section 846K of the Public ‘Protector Act, conduct further investigation info tho prima facie evidence of money Iundering as uncovered during my Investigation, and deal ith it accordingly." 24, The Puble Protector wont further by directing partioular menitoing mechanisms to be effected. In this cegar, in paragraph 9. of the repor, she directed both the Speaker and the NDPP to “within 30 working day's of the issuing of this report, provide the Public Protector with the Implementation Flan indicating how the ‘omedial action referred to in paragraphs (8.1.1, 8.1.2 and 8.1.3 of the Report) wi be implemented In paragraph 9.4 sho directed the NDPP to thin 30 days from the date of the issuing of this Report and for approvel of the Public Protector, 19submit an implementation plon fo the Public Protector indicating how the remedial action refered to in paragraph 8.2.1 ofthis veport wil ke implemented.” GROUNDS OF REVIEW 35. tis common cause thal, based on the decision of the Supreme Court of Appeal in Minister of Home Alters v Public Protector, the Public Protectors reports do not constitute administrative action. Accordingly, as they constitute an exercise of public power, they are reviewable unde the principles of the rule of law in terms of section 1(¢) ofthe Constitution 26, ‘Tho Prosident socks an ordor sovicwing, declaring invalid and acting aside: 436.4.the Public Protectors decision to investigate and report on the CR17 election ‘campaign for the ANC leadership elected in December 2017; 36.2. the Public Protector’s Report number 37 of 2019/20; and 36.3.the findings and remedial orders in paragraphs 7.4; 7.2; 8.1.4; 81.3; 824; 9.1; 8.3 and 8.4 ofthe Public Protector's Report. 37. The President's grounds of review may be summarised as follows: 37.1.The Public Protectors finding that the President misled the National ‘Assembly in breach ofthe Executive Code fs unlawl in that it was based on 2 material eror of lw, it vas wholly iretional, and it was in breach of the President’ right to freedom of speech in the National Assembly enshrined under section 98(1) of the Constitution." ® 2018 @ SA 300 (SCA) "This seein ison Prilege end provides tat 2037.2,The Puble Protector had no power to investigate the donations made tothe CRIT campaign, and her investigation in this regard was unlawiul The Public Protector only has jurisdiction to investigate “any conduct in state afar’ and “publ administration in any sphere of govemment. The ORI? ‘campaign and its funding falls outside of the scope of these powers. 37.3, The finding thatthe President had breached the Executive Code or the Code of Ethical Conduct and Disclosure of Members Interests for Assembly and Permanent Council Members (the Parliamentary Code) was irationat and unlawful, On the undisputed facts and as a matter of law, the President was not requied under ether Code to disclose the donations made to the CR17 campaign, 37.4. The Public Protectors finding that there was merit in the complaint that Mr Waison’s donation to the CR17 campaign gave rise to a suspicion of money faundering was irational, There was ne evidence of money laundering before the Public Protector. In addition, the Public Protector based her finding on an interpretation of the Prevention and Combatting of Corupt Activities Act (PRECCA),"* and not on the Prevention of Organised Crime Act (POCA)." I's the fatter, and not the former Act that establishes the offence ‘of money laundering, 87-5, The Public Protector acted unlasiully in that she faled to afford the President {2 hearing in terms of section 7(9)(8) of the PPA, and under the common law. ‘Cabinet members, Deputy Ministre ana member of te National Assam Cr est apes Aas arto, oe ea (© re notable to eu or emina proceedings, aes, imprisonment or damages for {anything tat thoy have sak im prosises poor or submteto the Reser OF any fie sgrnminess Phe 2 2608 pet 12 of 808 aMore particulary, she felled to afford the President a hearing on the cemedial action she was contemplating before releasing her Report * 37.6 Finally, the remedial action dicected by the Public Protector is unlawful. It is rot competent for the Public Protector to usurp the pawers of the Speaker and of the NDPP in her remedial orders, 38, The Speaker seeks to review and sel aside the remedial and monitoring measures insofar as they are directed at her. She contends that these orders are inappropriate and unlawul in that they impermissibly trench on the constitutional discretionary power of the National Assembly to hold the Executive to account Further, the Speaker says thet she does not have the power to refer the President to the Joint Commitee, as cracted by the Public Protector. This is because the President is not bound by the Parliamentary Code as he is no longer @ member of Perlament, The Speaker contends that the remedial action imposed by the Public Protector inthis regard Is accordingly misdirected, ineffective and inappropriate ‘She also contends thatthe Public Protector has no power under section 182(1) of the Consttution to monitor the Speaker and the National Assembly on the Aischarge of their constitutional obligations. Thus, she says, the monitoring mechanisms consitute an unjustifiable inngament on the doctine of separation of powers, 39. The NDPP seeks to review and set aside the remedial and monitoring orders ingofar as they are directed at her. In particular, the NDPP contends that the remedial and monitoring aetions are unlawful and irational. The Public Protector “The Present’ orignal case based on he avasnce ofa hosing exende sto to tho Pubic Protclo’s fate toa hina hearing in rescecto! he nternation she cites rom the FIC, and ia respect of ‘etn GRY compaign ea tha ware provided one, alleged by ahietebiowe. At the peeing of he ‘rater, counsel mad claar ht the Presidents revi’ n ns greund was focused onthe loge faire sagan the remediation ony. 2has no power under section 182(1) of the Constitution, or under section 6(4)(c}() of the PPA to direct the NDPP to investigate and to monitor her actions in this regard. In terms of section 6(4)(eM(), the Public Protector is empowered to dono more than to bring the matter to the notice of the NDPP. The NDPP says that the Public Protector exceeded her powers in imposing the remedial actions and ‘monitoring mechanisms on the NDPP. 40. The Present, the Specker and the NOPP seek orders of costs against the Public Protector in the event that their review applications succeed. The President seeks punitive costs order against the Public Protector, Le. an order directing her office to pay costs on an attomey and cllont scale, However, the President does not seek a personal costs order agoinet her. The Public Protector and the EFF ‘oppose the relief sought by the President, the Speaker and the NDP. The Public Protector seeks an order of costs in her favour, should she be successful “The EFF asks the court to deal with costs, insofar as it affects i, based on the Biowateh principle, AMABHUNGANE'S APPLICATION 41, Before dealing with the main issues before us, it is necessary {© contextuaise amaBhunganc's application. itexings @ conditional consitional challenge tothe Executive Code. The constitutional challenge relates to the duty of members of the Executive 10 disclose donations made to campaigns for postions within poltical parties 42. AmaBhungane does not seek to enter the dispute between the Public Protector ‘and the President. Nor does it seek to becorne involved in the interpretive debate ‘TBiowath Trust v Megara, Geneve Resources a Otters 2008 (0) 24292 (CO) aa3 to the meaning of the Executive Code as it currently stands. AmaBhungane's, challenge arises ‘only # we find that the Executive Code does not require disclosure of funding or internal paty-poltical campaigns. 43, _Inthat event, amaBhungane seoks an order: 143.1. Declarng that the Code is unconstitutional, unlawful and invalid to this extent and 49.2, Ditecting that the declaration of invalidity shall have no retrospective effect ‘and shall be suspended for 2 period of 12 months to allow for the defect to be remedied. 44, The gist of amaBhungane's cace is that if the Executive Code is found not to require such disclosure, then it is in breach of the Constitution, and particularly sections 19,"* 32" and 96.® Its also in breach of the Executive Members’ Ethics Act (the Ethics Act)” ISSUES 45, The lesues we must determine are as follows: 45.1. The first lesue is whether the finding ofthe Public Protector that the President had misled Perliament in violation of the Executive Code was rational and lawl 45.2.The second iscue is whether the Public Protector had jurisdiction to investigate donations to the CR1Y campaign at all, This jurisdictional ‘en assis wah ottica ight "¥en dats wah the night of a2cess to inormaton 2 yncn desis wh the cond of Cab meomibers and Deputy Ministre B patadel 1098 2question primariy underpins the disclosure issue. if the Public Protector did not have jurisdiction to investigate the CR17 campaign donations, then her finding that the President breached his duty of disclosure by not disclosing (ORI? donations is for tis reason alone open to being reviewed and set aside. 45.3.The third issue is whether, even if the Public Protector had jurisdiction to Investigate the CR17 campaign donations, her conclusion that he was ‘obliged to disclose the donations was lawful and rational 45.4, The fourth issue is whether the finding by the Public Protector that there was rmert in the complaint of @ suspicion of money laundering was rational and lawful 45.5. The fith issue Is whether the Public Protector’s Report and findings are ‘subject to review on the basis that she failed te afford the President audi ‘lferam partem before finalising her findings. 45.6. Tho sith issue is whether the remedial and monitoring orders directed atthe Speaker and the NDP are lawiul. Of course, if we determine that the findings underpinning the remedial and monitoring measures should be reviewed and set aside, it would follow as a matter of course that the remedial and monitoring measures associated with them should sutfer the same fate. However, the challenges 1 the remedial and monitoring measures ordered by the Public Protector raise important issues conoeming the ambit of her powers. For this reason, our view is that we should consider these issues regardless of the outcome of our determination on the Public Protector’ substantive findings, 2545.7. The seventh issue is the amaBhungane application, which is conditional on ‘our findings regarding the disclosure issue, 45.8. Finally, we must consider the question of costs THE FINDING THAT THE PRESIDENT i(lSLED PARLIAMENT. 48. There are some fundamental cificuties with the Public Protectors finding that the President misled Periament. 47, To begin with, it is apparent from the Report that the Publle Protector was confused about the legal foundation for her finding. tt is common cause that the finding was based on the Executive Code, ‘The relevant paragraph of this Code is 2.3(a). Itprescribes that “Members of the Executive may not .. wilfully mislead the legislature to Which they are accountable" 48, For some inexplicable reason, the Public Protector reframed the paragraph and the test. In paragraph 5.7.28 of her report, she purports to quate from paragraph 2.3(a) when she says the following “regard must be hed to section 2.3 of the Code which states that Members may not — ‘Deliberately or inadvertently mislead the President, ‘or the Premier, or, asin this case, the Legislature’ .” (emphasis added) OF course, this cannot have been a direct quote from paragraph 2.3(a), as indicated by the Public Protectors Inclusion of the phrase: “or, as in this case” However, her purported excerpt from the Code is even more fundamentally problematic han this. The Public Protector replaces “willy” with “rletierately or ‘nadvertentiy’ 2649, 60. 51 ‘While, as counsel forthe Publi Protector was at pains to point out, there may be no appreciable distinction between “wily” and “deliberately,” this is not the problem. The problem is that the Public Protector inroduced the element of inadvertent misleading of Parliament into the Code, This is entirely at odds with the text of the Code, tt also intreducos an entrely diferent test: whether in legal terms, or even in common senee terms, there is a material diference between ‘conduct that is wilful and that which is inadvertent. The one simply cannot be mistaken or interchanged withthe other, ‘This error and confusion are repeated throughout the Report It occurs in her final finding, where she concludes that “Consequently, President Ramaphosa’s reply was in breach of the provisions of paragraph 2.5(a) of the Executive Ethics Code, the standard of which includes delberaie and inadvertent misleading ofthe Legislature. He inadvertently andor deliberately misled Parliament, in that he should hhave allowed himself sufficient time to consider the question and make 2 well informed response." (emphasis added) correct ‘The Pubic Protector points out that elsewhere in her Report she cites t text. She stated in her answering affidavit that insofar as she erroneously misstated paragraph 2.3(8) of the Code, her error was immaterial, This is because according to her: *..my’ finding is based primanly on the President deliberately nrisleeding Parlament rather then inadvertently doing so" This is inconsistent with her final conclusion, which states, in so many words, that her finding was also based on an inadvertent misleading by the President. A further dificuty with the Public Protectors stance is that it simply does not explain her confusion in the fist place. Even if she sometimes referred to the correct formulation of the Code, she 3 Gas ale poras (6), (6), and § 124 ofthe Report ptpare 1 ofthe Report a52, 53, 84 demonstrably ‘emained confused throughout as to what the Code said and what test was to be applied before she could properly find that the President had breached the Code in this regard. Im our view, the President is correct in his submission that the Public Protector’s confusion permeates her entre consideration ofthis issue. Her confusion is bome out by her ulate conclusion, which is dificult to understand. Counsel forthe President submited that twas "garbled". As best we can understand, the Public Protector appears to havo fount that the President misled Parliament (either Geliberately an inadvertently, or inadvertent) by answering Mr Maimane's ‘question on the spot, and not allowing himself time to go away and consider the {question so that he could make a well-informed response. ‘A bes, this conclusion seems to point lo carelessness on the President's pat, of, with the beneft of hindsight, an ihjudged decision to answer Mr Maimane's ‘question then and there. However, by no stretch of law, logic or even ethics, could Conduct ofthis nature be said to smount to 8 wilful, or deliberate misleading of Parliament such as to emouri to a violation of paragraph 2.3(a) of the Executive Code. ‘That would be inconsistent with the right of members of the Executive to be protected in thet freedom of speech when they appear in the National Assembly Under section 53 of the Consituton. would also be contrary to the obvious purpose of the Executive Cod, viz. lo hold members of the Executive to account for their deliberate, wilful or intentional (however one might wish to phrase it misleading of Parliament In her treatment ofthis issue the Public Protector demonstrated @ fundamentally awed approact to the principles underpinning the question of whether the President violated the Executive Code by wilfully misleading Parliament. iis to 287 be expected of the Public Protector to proceed from the premise ofthe corect formulation of paragraph 2.3(a); to understand what the testis that must be applied to determine whether there has been violation; and finally, to pronounce conclusion that can be clearly understood and is in line with that test Unfortunately, the Public Protectors eparoach to the issue, inthis case, fale far shot of this. In this regard, the Public Protectors finding on the misleading of Pariiament issue is fatally flawed due to @ material eror of law, For this reason alone, tre finding warrants review and setting aside, However, there are further reasons for reaching the same conclusion. t¥one considers the fects before the Public Protector, itis clear that they simply did not establish thatthe President wilfully misied Pariament at all. The fulltext ofthe question posed by ir Maimane and the response of the President in Pariament axe set out earlier in this judgment. I is important, fis, to consider the question, and then to consider the President's ansvier. The factual premise of Ir Maimane’s question was that he (Mr Maimane) had proof that Mr Watson, the CEO of AGO, had caused a payment of R500 000.00 to be made tothe President's son. This was the statement of fact that was put tothe President. He was then asked to set the record straight as “we cant have family ‘members benefiting’. itis 80 that Mr Maimane mentioned the account name and the date of the transfer in his question. However, iis also clear that his real concern was that the President's son had secuted an improper benefit. Mr Maimane asked the President to explain the payment to his son. 2958, 59, 60. itis important to appreciate that the President was not asked by Mr Maimane to comment on whether the aecount EFG2 was in fact an account held by Ande, nor was he asked to confirm thatthe payment on that date was one made to his ‘son. These were given facts that Mr aimane put to him as having already been established and the President's answer was directed at those facts, Ofcourse, we know with hindsight that the payment was not to Ane and that the account EF62 was not linked to hiv. At he tima, however, these facts were not known to either Mr Maimane or te the President. There is no evidence to indicate that the President knew about the account EFG2 at the time he answered the ‘question, oF about the R500 000,00 donstion made by Mr Watson to the CR17 ‘campaign, The uncontested evidence before the Public Protector was that the President only found out about the donation, and about the account EFG2 alter he had answered the question in Parliament tn this context, it is dificult to understand how the Presidents answer could rationally be viewed as anything but honest and reasonable, given the nature of Mr Maimane's question. There was no evidence belore the Public Protector to gainsay the Presidents version, vihich was backed up by the evidence of Mr Motatsi, Mr Chauke and Ms Nicol. He sald that he had spoken :9 his son about his connection with AGO in the previous rmonths and thet this was why he had ‘assumed that the payment Mr Malmane mentioned in his question, 8s having been made to his son, was © payment for services his son had rendered to AGO in forms of his agreement with There is also nothing to gainsay the Presidents version that he focused on the gist of Mr Mimane’s question, and not an the date of the payment (which was in fact hefore Andlie's agreement with AGO came 30about) or the account details, Indeed, itis clear that these detalis were not the thrust of Mr Maimane's concern at all. 61. At best for the Public Protector, the President's answer contained incorrect information: he said that the payment was for services rendered by his son to ‘AGO. It's co that the President stated this emphatically, as the Public Protector points out, end that he dd so confident ofthe accuracy of his answer. However, if the President aave Parlament incorrect facts, this was based on a misstated set of facis presented to him by Mr Maimane in the fist place. The origin of this error was on the part of Mr Maimane, sot the President. In these circumstances, whatever incorrect facts were placed before Pariament, the President cannot rationally be found fo have misled the National Assembly in that regard, 62. This is particularly so considering that the test to be applied for @ violation of paragraph 2.2(a) requires @ wilful misleading of the National Assembly. The facts simply do not point tothe President having acted so as to willy mislead when he answered Mr Maimene's question, The evidence supports Ns version that he acted in gdod faith. Indeed, the Public Protector accepted the President's good faith in tis regard in her section 7(9) notice, and in pert of her Report. In her section 7(9) notice, she concluded that His conduct referrad lo above, although in good faith, fs inconsistent with his office as a momber of Cabinet and therefore in violation of section 96(1) of the Constituiion.... 63. This i repeated by the Public Protector in the executive summary of her Report, though she also states in her coriclusion in the Report that the President acted para 1144 of te enction 7(9) ratios aL66. “ostensibly in good faith. Whatever the explanation for this contradiction might be, the Public Protectors on cord as having accepted the Presidents bona fides inthis regard. i would be strange if she had not done so, as the evidence before hor clearly established thet he acted honestly and in good faith when he answered Mr Maimane's question, The President subsequenlly addressed a letter to the Speaker to set the record straight by providing detalls that went beyond the question Mr Maimane hed posed originally. Far fom indicating an attempt to mislead the National Assembly, this was conduct consistent with an intention to censure that Pariament is given the correct information, rather an intention willy tomisiead it What is more troubling is that the President dealt with the Public Protector's acceptance of his bona fides when he responded to her section 7(8)(a) notice. His response recorded that ‘The Publi Protector hes correctly found that the President actod in good faith That shouid be the end of the matter. Any suggestion that the President contravened the Execulive Ethics Code is incompatible with the Puble Protactor’s own fncing that his response to Mr Maimane was given ‘honestly and in good fit,” In her response in her final report, the Public Protector referred to this submission as "preposterous". ‘This response displays a deep-seated inabiliy, or refusal, to process facts before her in a logical and fair-minded manner. Such a response is, dificult to reconcile with her constitutional obligations. Furthermore, it was totally irational for the Public Protector to make a finding that the President misled Pattament on the pasts that ne shovle not have answered Wr Mamane's question before frst checking the facts, The President had sufficiently cared how it came about that he had answered hr Maimane's question on the spot. 3266, e. 68. 69. In its submissions to us, the EFF suggested that the Public Protector had been correct inher fining on this issue. The EFF contended thatthe court should apply what it caled a hybrid test for determining whether the President misled Parliament in breach of the Executive Code. As we understand the contention, it is that the President was under the highest ethical duty, as the Head of State, to ‘account properly to the National Assembly. For this reason, so the submission Went, his conduct in answering Mr iMaimane's question must be judged on ethical standards, and not solely on the legal standard of whether he intentionally misted Parliament. ‘According to the EFF, the President breached this ethical standard when he told ‘he National Assembly that he was teling the uth based on facts he had gathered {tom his son, The EFF says that hindsight shows that what the President claimed to be the truth was not the truth. ‘The EFF submis thatthe explains the Public Protectors finding that he misled Pariament by not taking time to answer the question properly: had he done 8, he would have provided Parliament with the uth, “These submissions have no substance, We are not tot which rule of Partiament is the source of the contended highest ethical standard. It appears that we are expected to simply conjure the said rule and then enforce it. It would be a sad day indeed for our law were Courts to operate in this manner. In addition, the EFF's submissions come nowhere to showing the requisite wilfulness to found substance in the complaint investigated by the Public Protector. Iti important to remember tat Mr Maimane did not ask the President about donations tothe CR17 campaign. He asked him about a payment to his son. Yet, unen the President aiscovered that the dentified payment was a donation tothe 23CRI7 campaign, he took steps to correct the information he had given Parliament by providing it with the correct facts. He cannot, in hindsight, be said to have acted in breach of his ethical dues by electing to follow this path rather than by doing what the EFF says he should have done. ‘The EFF further contends that the Presidents answer to Mr Maimane must be considered in conjunction with his prior conduct in what the EFF says was his deliberately distancing himself from the donations made to the CR17 campaign ‘The EFF says that the President decided to operate within ¢ “ring of ignorance”, and that he assumed 2 position of wilful blindness as regards donations to the (CR17 campaign. The EFF says thet this was a deliberate strategy to provide him with plausible deniabity, in dereliction of his ethical duties to be open and transparent to Partiament. As we understand the EFF's argument it is this aspect of the President's conduct that saisfies the element of wilulness contained in paragraph 2.3{a) of the Code. ‘Tho undisputed evidence of the President is that the reason why it was decided that he hould be insulated from information about donations to the CR17 campaign was procialy to: avoid him boing placed in a postion of poseible conflicts of interest. His uncontested version Is that his insulation from the details of the financial transactions and donors to the CR1? campsign ensured that he avoided the risk that donors might subsequently expect some form of pay-back from him, There is no evidence to the contrary, nor is it an implausible explanation. On the contrary, it seers to have been @ reasonable strategy to ‘employ in order to avoid possible conflicts of interest. ‘The EFF's argument is based on the assumption that the only way to avoid possible conflicts is for a candidate to have full knowledge of donations. The EFF 3473, 74, 1 however fale to advance any basis for his submission to buttress its plausibly ‘The EFF's argument also proceeds on the assumption that the President had nefarious moives by preferring not to be provided with the details ofthe funding ‘The EFF has provided no factual foundation for these submissions. Other than proffering uneubstantiated accusations of il ill aganet the President, the EFF has not displaced his fectualy supported reason for his answer to Mr Maimano's question as villas his excivsion from the inner workings of the GR7 campaign ‘There is simply nothing on the facts 10 support the EFF's assumption, and ts ‘contentions ds not assist the Public Protector. Finaly its necessary to deal with an important anomaly in the Report. Although the Public Protector deckied to consolidate the two complaints, she made no findings in respect ofthe complaint of Mr Shivambu, The Public Protector included the agreemert and anti-corcuption policy between AGO and Andile in her Report Accordingly, they clearly existed. Howwver, she did not draw the obvious conclusion tem this evidence, ve. that the President had not misled Pariament in this respect. She does not explain her omission. In al faimess, the President was enitled to be exonerated on this complaint. Instead, the Public Protector ignores the point of bir Shivambw's covnpinin, which was ta question whether the President mised the National Assernbly about his son’s contract. ‘The Public Protector did not make the obvious finding that the President had told the truth about his son having an agreement with AGO. In our view, in aling to do s0 the Public Protector did not act with an open mind, and so breached one of the cardinal requirements of her postion. For these reasons, we find that nat only did the Publi Protector commit a material ‘misdirection in her legal approach to the misleading of Parliament issue, but she 8also reached an irrational and unlawful conclusion on the facts that were before her. Further, she did not approach the issue with an open mind. The Presidents review of her finding in this regard therefore must be upheld and the finding set aside DID_THE PUBLIC PROTECTOR HAVE JURISDICTION TO INVESTIGATE THE OR17 CAMPAIGN DONATIONS? 76. 7 The Public Protectors findings on the disclosure issue and on the money laundering issue arose out of her investigation into the flow of funds to and from the CRIT campaign. She subpoenaed bank records linked to the identified ‘account, and analysed tho flow of funds. From this, she concluded that the President had opened himself up to a risk of @ conflet of interest between his personal and official obligations. She also conckided that a prima facie suspicion of money laundering was established, Her investigation into the CR17 campaign bank records was essential to her eventual findings. tn his complaint, Mr Maimane raised a concern that the payment from Mir Watson might be indicative of an “improper relationship existing between the President and his family on the one side, and the company African Global Operations on the ther. On the question of money laundering, he again focused on the payment from Mr Watson, saying that “the nature ofthe payment, passing through several intermediaries, does not accor! with a straighfowvard donation and raises the suspicion of money laundesing’. He raised a concern about state capture, saying that: “wo cannat allow another Presizont to be thus captured’. This was inthe context, as stated by Mr Maimane, of AGO having been reported as having received billions of Rands in state tenders in an itregular fashion, Mr Maimane's complaint was nat about the CR17 campaign 3678. Mr Shivambuis complaint simlaty had nething to do withthe CR17 campaign, tt ‘so focused on the payment of R500 000.00 by Mr Watson, However, it was leven more spect. It requested the Pubile Protector to investigate whether there was an existing contract between AGO and the President’ son, as the President had claimed and whether the President hed indeed seen the contrac. 78. The President contends that the Puble Protector acted outside ofthe ambit of her powers by nonetheless proceeding to investigate the CR17 campaign, and by making findings flowing from her investigation. According to him, the CR17 campaign was 2 campaign that took place within the context of an election campaign internal tothe ANC. twas for the election of te President as President of the ANC, and for the election of other, like-minded members to additional positions within the parly structures, The funding that the Puble Protector investigated was private funding, it was sourced from private donors. who supported the campaign, Neither public ffsrs nor puble funds were involved in the campaign. Thus, the Presidant says that the Public Protector had no Jurisdiction to investigate the GR17 campaign and its donations. The Pubiic Protector disputes this. She saya that her powers are wide enough fo encompass her investigation inte the CR17 campaign and that she acted within ter jurisdiction In doing so. 80, There can be no doubt that he Public Protector has wide powers. This fact has been repeated hn numerous dlcta, including those emanating from our highest Court® However ke any statutory body, those powers are not unlimited. Nor is the Public Protector’s sphere of jurisdiction unlimited. The question is what were 2 gee, or example, Publ Poectrv al and Guardian 1d and Ohare 2011 (4) SA 420 'SCA) nereter tai @ Gueraan), South ean Broadcasting Cappoation Soc Lid and Others v Democrats Allance and ‘hers (Coruption Watch a amicus eunac) 2018 2) SA8Z2 (SCA), EFF v Speakar a7the limits other jurisciction inthis matter? This is not an abstract question, It must be answered by looking at, among other things, the context in which the Public Protector investigated the CR17 campaign, the powers she relied on 1 doing so, the facts she had before her, and the particular findings she made in her Report arising out of her investigation, 81. The souroe of the Public Protectors powers lies in section 182 of the Constitution. ttreads, in relevant part (1) The Public Protector has the power, as regulated oy national legistation- (@) to investigate any conduct in state affairs. or in the pubic adminisialion in_any sphere of government, that is alleged or suspected to be improper or fo result in any impropriety or prejudice; {b) to report on that conduct; and {6) to take appropriate remedial action, (2) The Public Protector has the additonal powers and functions prescribed by nationai legisiation* (emphasis added) 82. The PPA sets out her additional powers and functions, Her sphere of competence, insofar as her investigative powers are concemed, is determined by section 6(4), which reads: “The Public Protector chal be eompatont (2) to investigate, on his or her own iniative or on receipt of a complaint, any alleged- (@ maladministration in connection withthe affairs of aovemment at any level (i) abuse of unjustitable exercise of power or unfair, capicious, Jiscourteous or other improper conduct or undue delay by a person gerforming a public function (i improper oF cishonest act, or omission or offences referred to in Part 4 fo 4, of section 17, 20 or 21 (in so far as itrelates to the aforementioned offences) af Chapter 2 of the Preventon and 38