Public protector advocate Busisiwe Mkhwebane has suffered yet another legal blow.
This time around the Constitutional Court has dismissed a rescission application she launched to have the country’s apex court change its decision that she had changed the wording of Executive Code of Ethics in her findings against President Cyril Ramaphosa in connection with the so-called CR17 funding.
In July 2021, the ConCourt found that Mkhwebane had replaced the word “wilfully” to “deliberately or inadvertently” when concluding that Ramaphosa misled parliament about the funds received by his campaign to become ANC president in 2017.
Mkhwebane had argued in her rescission application that the court had relied on an old version of the Executive Code of Ethics when dismissing her appeal of a high court decision that set aside her report on the R500 000 that controversial facilities management company Bosasa paid to Ramaphosa’s campaign.
The ConCourt upheld a decision of a high court setting aside the report.
On Wednesday morning, the highest court in the land ruled that the rescission application “should be dismissed as no case has been made out for rescission”.
Mkhwebane’s rescission application arose from the ConCourt’s upholding the decision of a high court that set aside Mkhwebane’s report into the CR17 funding, which concluded that Ramaphosa had lied in parliament when explaining the donation.
She had appealed to the country’s highest court to overturn the setting aside of the report by the North Gauteng High Court in Pretoria. But the ConCourt affirmed the invalidity of the report and found that she had erred in law.
“For a member of the executive to breach the [Executive Ethics] Code, she or he must have given incorrect information with the intention to mislead the legislature. Incorrect information alone is not sufficient to constitute a violation of the code,” the judges found.
They said Mkhwebane had “seriously misconstrued the code”.
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