Public Protector and Others v President of the Republic of South Africa and Others [2021] ZACC 19 (1 July 2021)

JUDGMENT

JAFTA J (Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):

Introduction

1. This matter concerns enforcement of the Executive Members’ Ethics Act¹ (Members Act) and the Executive Ethics Code² (Code) published in terms of that Act. Powers of the Public Protector to investigate breaches of these instruments also arise for consideration.

2. The determination of these issues requires a proper interpretation of the relevant legislation and its application to the present facts. These issues arise in the context of the review of findings and remedial actions taken by the Public Protector in a report she rendered against the President of the Republic. In terms of the remedial actions the Public Protector had ordered certain organs of state, including the Speaker of the National Assembly (Speaker), to undertake steps prescribed by her and report back on steps taken by each organ of state.

3. The President was aggrieved by the findings made against him and the remedial action ordered. He instituted a review application in the High Court impugning the validity of the Public Protector’s decisions, mainly on the grounds of unlawfulness and irrationality. He was joined by the Speaker and the National Director of Public Prosecutions (NDPP) in the review application. These parties sought to have the remedial actions taken against them set aside on the ground that those actions were not competent in law.

4. The Public Protector and the Economic Freedom Fighters (EFF) opposed the relief sought in the review application. Meanwhile AmaBhungane Centre for Investigative Journalism NPC (AmaBhungane) was granted leave to intervene. AmaBhungane asked the High Court to construe the Code as requiring disclosure of monetary donations made to campaigns for the leadership of political parties, alternatively it mounted a constitutional challenge against the Code. This challenge was contingent upon the rejection of AmaBhungane’s interpretation by the High Court.

5. Before the High Court, the review application was successful and the Public Protector’s report was set aside, together with its findings and remedial orders. The Public Protector was ordered to pay the President’s costs on a punitive scale of attorney and client, and the costs of the Speaker and the NDPP on a party and party scale.

6. Unusually, no order was made with regards to the relief sought by AmaBhungane. But in its judgment, the High Court addressed AmaBhungane’s case and acknowledged that a compelling case was made out with regard to the constitutional challenge. However, the High Court concluded that the challenge was not properly raised and as a result that Court was of the view that the challenge against the validity of the Code should be dismissed.

7. The Public Protector, the EFF and AmaBhungane were unhappy with the outcome and sought to appeal to this Court. Before outlining the facts on which these parties rely for leave to appeal, it is necessary for a proper appreciation of the issues, to set out a summary of the relevant legal instruments.

Members Act

8. The Members Act came into force on 28 October 1998. It is a short piece of legislation comprising seven sections. Its purpose is to provide for a code of ethics governing the conduct of members of Cabinet, Deputy Ministers and Members of Executive Councils (MECs) at a provincial level. Evidently, the scope of this Act is limited to regulating ethical conduct of members of the Executive at both national and provincial spheres.

9. Section 1 defines meanings to be attached to certain words wherever they appear in the Members Act. These words carry the defined meanings unless the context indicates otherwise. Section 2 empowers the President of the Republic to draw up a code of ethics “prescribing standards and rules aimed at promoting open, democratic and accountable government”. Members of Cabinet, Deputy Ministers and MECs (collectively referred to as Members of the Executive) must comply with this Code when performing their official functions. After consultation with Parliament, the President must publish the Code in the Gazette.

10. Section 2 also prescribes what the code should contain.³ Apart from requiring that Members of the Executive should at all times act in good faith and in the best interests of government, the code must forbid them from undertaking: (a) paid work; (b) using their positions to enrich themselves and others; (c) acting in a way that is inconsistent with their office; and (d) exposing themselves to a conflict of interest between their official responsibilities and private interests. In addition, the code must require these Members to make formal disclosure of their financial interests to an official designated by the President or the Premier, as the case may be.

11. Section 3 empowers the Public Protector to investigate any breach of the code. The scheme that emerges from the reading of this provision is that the Public Protector’s power to investigate is subject to a formal complaint. This suggests that the scope of an investigation is determined by the breach of the code contained in the complaint. It is important to note that section 3 does not authorise the Public Protector to investigate a violation of the Act itself but limits her authority to investigating a breach of the code.

12. The section does not explicitly prescribe the procedure to be followed during an investigation. However, it mandates the Public Protector to follow processes outlined in the Public Protector Act,⁴ and exercise investigative powers afforded to her by that Act.⁵ The section contemplates a swift investigation which must ordinarily be concluded and a report be submitted to the President if the complaint was against a Member of Cabinet or a Deputy Minister, or to the Premier if the complaint was against an MEC.

13. Within 14 days from the date of receiving the report, the President must submit to the National Assembly the Public Protector’s report, together with the President’s report on action taken or to be taken against the culprit. If the investigation was against an MEC, the Premier must submit the Public Protector’s report, together with her own report on the action taken or to be taken against the MEC, to the relevant Provincial Legislature.

14. Implicit in this scheme is that the action to be taken against the culprit is left to the discretion of the President or the Premier, as the case may be.⁶ However, once a decision on a penalty is taken, the National Assembly or a Provincial Legislature must be informed about the penalty. If the investigation was against a Premier, the Public Protector must submit her report to the President who must forward it with his own comments to the National Council of Provinces (NCOP). But the scheme does not reveal to whom the Public Protector must submit her report if the President was the subject of an investigation and whether such report is to be placed before Parliament.

15. Section 4 stipulates that complaints must be investigated in accordance with section 3. If a complaint is against a Cabinet Member or Deputy Minister, the complainant may be the President, a Member of the National Assembly or a permanent delegate to the NCOP. If the complaint is against an MEC, the complainant may be the Premier or a member of the relevant Provincial Legislature.

16. The form prescribed for the complaint is that it must be in writing and must contain the name and address of the complainant. It should also set out full particulars of the alleged breach of the code and the identity of the person against whom the complaint is lodged.⁷

17. A member of the public cannot be a complainant in relation to a complaint submitted in terms of section 4 of the Members Act. However, this does not mean that a member of the public can never complain about a breach of the code. Where this occurs, the Public Protector must investigate the complaint in accordance with the Public Protector Act and not in terms of section 3 of the Members Act.⁸

18. The remaining sections of the Members Act are not material to the present issues and need not be considered.

The Code

19. On 20 July 2000, and after consulting Parliament, the President of that time published the Code in the Gazette, acting in terms of section 2 of the Members Act. Like the Act, the Code is brief and consists of eight paragraphs. Its perusal reveals some tension between the Code and section 2 of the Members Act. For example, section 2 directs that the Code should require all members of the Executive, including the President and Premier, to act in good faith and in the best interests of good governance and to meet all obligations imposed on them by law.

20. The Code, on its face, exempts the President and Premiers from these obligations and requires other members to discharge these obligations to the satisfaction of the President or the relevant Premier. The Code provides:

“2.1 Members of the Executive must, to the satisfaction of the President or the Premier, as the case may be—

(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfill all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance, and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.

2.2 In deciding whether members of the Executive complied with the Provisions of clause 2.1, the President or Premier, as the case may be, must take into account the promotion of an open, democratic and accountable government.

2.3 Members of the Executive may not—

(a) wilfully mislead the legislature to which they are accountable;

(b) wilfully mislead the President or Premier, as the case may be;

(c) act in a way that is inconsistent with their position;

(d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person;

(e) use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;

(f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;

(g) receive remuneration for any work or service other than for the

performance of their functions as members of the Executive; or

(h) make improper use of any allowance or payment properly made to them, or disregard the administrative rules which apply to such allowances or payments.”

21. Paragraphs 2.1 and 2.2 of the Code suggest that it is the President or Premier who determines whether the relevant obligations have been properly discharged and, for them to make that determination, they should take into account “the promotion of an open, democratic and accountable government”. But it is not clear whether in relation to obligations under paragraph 2.3 of the Code, the President and Premier play the role given to them by paragraph 2.1. However, this ambiguity has no bearing on the issues that arise because the entire case, here and before the High Court, was prosecuted on the footing that paragraph 2.3 of the Code applies to the President. Consequently, it is not necessary for present purposes to decide definitively whether it applies. The matter must be approached on the same understanding.

22. Again, the provision of the Code dealing with conflict of interest appears not to be in line with the Members Act. Section 2(1)(b) of the Act prescribes that the Code should prohibit members of the Executive from exposing themselves to a risk of conflict between their official responsibilities and their private interests. One way of avoiding this is for the member to recuse himself or herself from any matter where the member has a personal or private interest.

23. But the Code permits such a member to participate in deciding the matter with the permission of the President or the Premier, as the case may be.⁹ The language of the Members Act on this issue is plain and does not qualify the prohibition which the Code must reflect. Paragraph 3.4 of the Code implicitly allows members of the Executive to expose themselves to conflict of interest, provided they declare their interest when making representations to another member of the Executive.¹⁰ This is the legal framework against which the present matter must be adjudicated.

Factual background

24. The President is elected by the National Assembly from among its members.¹¹ Once elected President, the person ceases to be a member of the National Assembly.¹² This has a bearing on the remedial action ordered by the Public Protector against the National Assembly in this matter. Upon his election, the President becomes the Head of State and the National Executive. When the National Assembly elects the President, it represents the people and ensures “government by the people under the Constitution”.¹³ Section 42(3) also imposes a duty to scrutinise and oversee executive action. It is on the basis of this duty that Parliament holds the Executive to account for the exercise and performance of executive functions.¹⁴

25. One of the ways in which the Executive is held to account is requiring its members including the President, to appear before Parliament and answer questions from members of Parliament. The procedure followed under this process is to have questions reduced to writing and submitted to the relevant member of the Executive, ahead of the date on which she would be required to provide answers. This enables a member of the Executive concerned to investigate the matter for purposes of answering the questions posed. The investigation becomes necessary, especially where the relevant information is not within the personal knowledge of the member of the Executive in question. This procedure facilitates accurate answers to questions from members of Parliament.

26. On the appointed day, the member of the Executive concerned is required to appear before Parliament and questions are put to the member who would give answers. The member of Parliament whose question is answered, is permitted to ask follow up questions related to the issues covered by the written question.

27. On 6 November 2018, the President appeared before the National Assembly to answer questions. Having answered a question from the leader of the official opposition party at the time, Mr Mmusi Maimane, the President faced an oral question from that leader. The latter question did not constitute a follow up question to the one that had just been answered by the President. It dealt with a totally different issue. As it appears on the Assembly’s records, the new question was framed in these words:

“Mr President, here I hold a proof of payment that was transferred to say that R500 000 had to be transferred to a trust account called EFG2 on 18 October 2017. This was allegedly put for your son, Andile Ramaphosa. [Interjections]. Following on that, I have a sworn affidavit from Piet Venter, stating that he was asked by the chief executive officer of Bosasa to make this transfer for Andile Ramaphosa. Mr President, we can’t have family members benefiting. [Interjections]. I would want to ask you, right here today, that you bring our nation into confidence and please set the record straight on this matter. Thank you very much.”

28. The question clearly was about a payment of R500 000 that was deposited into a “trust account called EFG 2” for Mr Andile Ramaphosa, the President’s son, on 18 October 2017. The leader of the official opposition claimed to have proof of that payment. He also said he had a sworn affidavit from the person who made the payment. Then he asked the President to set the record straight after alleging “we can’t have family members benefiting”.

29. The President did not insist that the normal procedure of reducing the question to writing and submitting it to him in advance be followed. Instead, he answered the question as follows:

“I proceeded to ask my son what this was all about. He runs a financial consultancy business, and he consults for a number of companies, and one of those companies is Bosasa where he provides services on entrepreneurship, particularly on the procurement process. He advises both local and international companies. Regarding this payment, I can assure you, Mr Maimane that I asked him at close range whether this was money obtained illegally, unlawfully – and he said this was a service that was provided. To this end, he actually even showed me a contract that he signed with Bosasa. The contract also deals with issues of integrity, issues of anti-corruption, and all that.”

30. Shortly after the President’s appearance before Parliament, one of his advisors pointed out that the payment of R500 000 into the EFG 2 account was not for his son but a donation made to the CR17 campaign by Mr Gavin Watson. Realising that the answer he gave instantly in Parliament was inaccurate, the President addressed a letter to the Speaker.¹⁵ In it, the President pointed out that the payment over which he was asked by the leader of the official opposition was in fact a donation by Mr Watson to the CR17 campaign. The President explained that he learnt about this fact after he had answered the question in the Assembly.

31. The management of the CR17 campaign also issued a public statement to the media which sought to clarify the matter. The statement revealed that the CR17 campaign was established to promote, among other goals, the candidature of Mr Cyril Ramaphosa to the position of President of the African National Congress (ANC), one of the political parties represented in Parliament. The other objectives of the campaign were to restore the integrity and cohesion of the ANC, as well as putting South Africa back on the growth path. Plainly these were the activities of the ANC, as a political party.

32. The same media statement stated that the President, who then was the Deputy President of both the Republic and the ANC, had no close contact with the campaign. By design, those who established the campaign wanted to avoid conflict of interest. Although the President was invited to some fundraising dinners with potential donors, he was not exposed to information about donations and who had made them. When he answered the question on 6 November 2018, concluded the media statement, the President had no knowledge of the donation by Mr Watson to the campaign.

33. Surprisingly the leader of the official opposition, who had claimed in Parliament to have had in his possession proof of payment to the President’s son, did not seek to refute the correctness of the allegations in the President’s letter to the Speaker and repeated in the campaign’s media statement. Instead, he lodged a complaint with the Public Protector on 26 November 2018. In his complaint, he reaffirmed that he had documentary proof of the payment to the President’s son and a sworn statement which alleged that the money was for the President’s son.¹⁶

34. Having referred to the President’s letter that was addressed to the Speaker, the complaint asserted that the facts revealed that “there is possibly an improper relationship existing between the President and his family on the one side and the company African Global Operations (formerly Bosasa) on the other side”. The complaint proceeded to allege “that the President may have lied to the National Assembly in his reply to my question on 6 November 2018”. No details were provided on how or on what basis the President was suspected to have lied in his answer in Parliament.

35. But what is confusing with regard to this suspicion is that the leader of the official opposition persisted in contending that the payment in question was made to the President’s son. And he attached the proof of payment he claimed to have had together with a sworn statement from the person who made it. It will be recalled that in the view of the complainant, the payment was for the President’s son and he had “proof” of that fact. It will also be remembered that the answer given by the President accorded with the facts in respect of a payment to his son.

36. Evidently the complaint by the leader of the official opposition was lodged in terms of section 4 of the Members Act. On 25 January 2019, the Deputy President of the EFF also submitted a complaint against the President to the Public Protector. With reference to sections 3(1) and 4(1) of the Members Act, the EFF’s Deputy President asked the Public Protector to investigate—

“1. Whether the statement made by President Ramaphosa in [the National Assembly] on 6 November 2018 that he saw a contract between his son’s company and African Global Operations is true, and that a contract indeed does exist;

2. Whether President Ramaphosa deliberately misled Parliament in violation of the Executive Ethics Code.”

37. Meanwhile, the President received notice from the Public Protector in December 2018, inviting him to submit a written response to the complaint by the leader of the official opposition together with any relevant information. The notice also indicated that should the President wish to engage, the Public Protector would meet him.

38. The President submitted a written response and met with the Public Protector on 29 January 2019. The Public Protector in that meeting, which was convened to discuss the complaint by the leader of the official opposition, raised the alleged failure by the President to declare donations to the CR17 campaign “as personal sponsorships” in terms of the Code. On 11 March 2019, the President filed a supplementary response addressing the non-disclosure issue. In this response, the President disputed that he had a duty to disclose donations to the CR17 campaign on the ground that they were not donations to him. He set out the requirements of the Code as he understood it and concluded that he did not fail to make a disclosure because in the first place he had no obligation to disclose donations to a structure within a political party.

39. During her investigations, the Public Protector also interviewed managers of the CR17 campaign. She demanded disclosure of information on all donations to the CR17 campaign but those managers declined on the ground that, barring the donation by Mr Watson, those donations were not relevant to the complaints she was investigating.

40. In May 2019, the Public Protector invited the President to a meeting. At that meeting, the Public Protector gave the President a copy of her preliminary report which outlined findings she intended to make against him. She afforded him 10 days within which to respond to the preliminary report. Upon perusing the report, the President realised that he needed more time as the report addressed wide ranging issues and he had other demands to attend to from his office. He asked for an extension of three weeks but the Public Protector gave him two weeks. He also asked for an opportunity to interview Mr Watson which was granted but later withdrawn. Instead, the President was informed that he could submit his questions to the Public Protector who would do the interview. The President submitted the questions but he did not receive Mr Watson’s answers until he submitted his response to the preliminary report.

41. The final report was released and published on 19 July 2019. In this report, the Public Protector rejected the President’s representations made in response to the preliminary report. Instead, she concluded that the President had violated paragraph 2.3(a) of the Code. The report also revealed that the Public Protector investigated the affairs of the CR17 campaign and that during the course of that investigation, she reached a conclusion that there was a failure by the President to disclose donations made to him, in his capacity as the Deputy President of the Republic. In addition, she formed an opinion that some of the payments made raised a reasonable suspicion of money laundering.

42. But in a somewhat confusing manner, and relying on the same findings that support the conclusion that the President failed to disclose the CR17 campaign donations, the Public Protector’s report records that the allegation that the President exposed himself to a risk of a conflict between his official responsibilities and private interests is substantiated.

43. Having found that the President violated the Code and section 96(1) of the Constitution, the Public Protector directed the Speaker to refer the President’s breach of the Code to a Joint Committee on Ethics and Members’ Interests and that the Speaker should demand publication of all donations received by the President. Her remedial action also required the NDPP to take note of certain “observations” and directed the NDPP to “conduct further investigation into prima facie evidence of money laundering as uncovered during [her] investigation”. Lastly, the remedial action directed the National Commissioner of Police to investigate criminal conduct described as lying under oath, against Mr Watson.

44. The Public Protector added to her remedial action, supervisory orders which required the Speaker, the NDPP and the National Commissioner to submit to the Public Protector implementation plans, indicating how they were going to give effect to the remedial actions. They were instructed to submit these plans within 30 days from the date on which the report was issued. The need for the supervisory orders was not explained in the report.

45. This is the background against which this matter must be considered. It will be recalled that it comes before this Court as an application for leave to appeal directly to it.

Leave to appeal

46. Section 167(6) of the Constitution gives litigants a right to appeal directly subject to leave of this Court which may be granted only if allowing a direct appeal is in the interests of justice.¹⁷ The Public Protector, the EFF and AmaBhungane sought leave to appeal the decision of the High Court directly to this Court. The EFF and AmaBhungane have also applied to other courts for leave. They approached this Court upon learning that the Public Protector had sought leave from it and that her application was set down for hearing. As a result, the success of their applications depended on the granting of leave to the Public Protector. Their approach was simply that in the event of the Public Protector obtaining the necessary leave, it would be convenient for this Court to entertain their cases as well because they raise issues similar to those advanced by the Public Protector.

47. Therefore, whether it is in the interests of justice to permit a direct appeal will be evaluated with reference to the Public Protector’s case only. Factors which support a direct appeal here include important constitutional issues raised which have a bearing on the exercise of public powers by the Public Protector; the saving of time and costs; the prospects of success; and urgency. The question whether the Public Protector is obliged to afford a hearing to a party against whom she contemplates remedial action, must be determined as a matter of urgency. This issue has a bearing on the fairness of investigations undertaken daily by the Public Protector.

48. These factors must be weighed against bypassing the Supreme Court of Appeal and the disadvantages to the management of this Court’s roll. Guidance in determining where the interests of justice lie was provided in Democratic Party.¹⁸ In that matter this Court stated:

“In deciding what is in the interests of justice, each case has to be considered in the light of its own facts. A factor will always be that direct appeals deny to this Court the advantage of having before it judgments of the [Supreme Court of Appeal] on the matters in issue. Where there are both constitutional issues and other issues in the appeal, it will seldom be in the interests of justice that the appeal be brought directly to this Court. But where the only issues on appeal are constitutional issues the position is different. Relevant factors to be considered in such cases will, on one hand, be the importance of the constitutional issues, the saving in time and costs that might result if a direct appeal is allowed, the urgency, if any, in having a final determination of the matters in issue and the prospects of success, and, on the other hand, the disadvantages to the management of the Court’s roll and to the ultimate decision of the case if the [Supreme Court of Appeal] is bypassed.”¹⁹

49. Here, there are no common law issues that arise. The matter concerns constitutional issues only. Disadvantages to the management of this Court’s roll also do not occur. The only factor against permitting a direct appeal is that the Supreme Court of Appeal would be bypassed. Some of the issues arising have been before that Court. In Democratic Alliance,²⁰ the Supreme Court of Appeal decided to leave open the question whether the Public Protector’s remedial action constituted administrative action. Meanwhile, the High Court has held that remedial action amounts to administrative action.²¹

50. Recently in Minister of Home Affairs, the Supreme Court of Appeal has concluded that the decisions taken by the Public Protector, including the remedial action, do not constitute administrative action.²² This decision appears to be at variance with one taken by this Court in South African Reserve Bank.²³ This Court implicitly endorsed the application of the Promotion of Administrative Justice Act²⁴ (PAJA) in the decision making process followed by the Public Protector when she takes remedial action.

51. It is in the interests of justice for this Court to definitely determine whether a person against whom remedial action is taken by the Public Protector is entitled to a hearing. There must be certainty in the procedure followed by the Public Protector in taking decisions which adversely affect the rights of those who become the subject of her remedial actions.

52. When all the factors outlined here are weighed against bypassing the Supreme Court of Appeal, the scale tilts in favour of granting the applicants permission to bring the appeal directly to this Court. Affording parties a hearing before remedial action is taken by the Public Protector is a matter of constitutional import in which the public has interest. Consequently, leave to appeal should be granted.

53. Freedom Under Law (FUL) was admitted as amicus curiae (friend of the court). FUL was established in 2009 as a not-for-profit organisation whose objectives are the promotion of democracy under law and respect for the rule of law in Southern Africa. It has participated as a friend of the court in a number of matters in various courts, including this Court.

Issues

54. Since the applicants seek to appeal against the decision of the High Court, the present issues arise from that decision:

1. Whether the Public Protector correctly found that the President had misled Parliament in breach of the Code;

2. Whether the President had a duty to disclose donations made to the CR17 campaign;

3. The Public Protector’s competence to investigate the affairs of the CR17 campaign;

4. Whether the audi principle applies to the process preceding a decision on appropriate remedial action;

5. Whether the remedial actions taken here are lawful; and

6. Whether the High Court rightly declined to adjudicate AmaBhungane’s constitutional attack in relation to the Code.

Misleading Parliament

55. When the former President drafted the Code, he did not lose sight of the fact that members of the Executive are usually called upon to give answers to questions raised in Parliament, in respect of matters over which they have no personal knowledge. He cautiously and deliberately framed the Code in these words:

“Members of the Executive may not:

(a) wilfully mislead the Legislature to which they are accountable.”²⁵

56. Plainly, this prohibition is narrow. Members of the Executive are forbidden from wilfully misleading the Legislature to which they are accountable. In other words, for a member of the Executive to breach the 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. Such information must be accompanied by the member’s intention to mislead.

57. A perusal of the Public Protector’s report reveals that she seriously misconstrued the Code. In paragraphs 5.1.33-5.1.34 she states:

“5.1.33 As indicated above, the statement made by President Ramaphosa on 06 November 2018 in his reply to Mr Maimane’s question albeit defective in terms of the Rules of the National Assembly, was misleading, as he also conceded in his correspondence to my office on 01 February 2019, and even in his subsequent letter to the Speaker of the National Assembly on 14 November 2018 where he sought to correct the incorrect information he had provided in the National Assembly.

5.1.34 Consequently, President Ramaphosa’s reply was in breach of the provisions of paragraph 2.3(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the Legislature. He inadvertently and/or deliberately misled Parliament, in that he should have allowed himself sufficient time to consider the question and make a well informed response.”

58. Quite clearly, this statement shows that she thought that the Code prohibited members of the Executive from furnishing any and every piece of incorrect information, regardless of their state of mind and the objective they wished to achieve. To her, the acknowledgment by the President that he gave an incorrect answer was enough for the conclusion that he had violated the Code. If the President, according to the Public Protector, wished to avoid giving an incorrect answer, he should have insisted that the rules of the Assembly be followed which would have afforded him sufficient time “to answer the question and make a well informed answer”. This reasoning is not only devoid of a legal foundation but also reveals ignorance as to how information furnished to Parliament is gathered.

59. But what is more concerning with the report is that the Public Protector changed the wording of the Code by adding “deliberate and inadvertent misleading of the Legislature”. That this is an addition is apparent from the statement quoted above. She states that the President’s reply breached paragraph 2.3(a) of the Code, “the standard of which includes deliberate and inadvertent misleading”. It is inconceivable that the sole word used in the Code “wilfully” could be read to mean “inadvertent”. These words carry meanings that are mutually exclusive. Wilfully cannot include inadvertent. What was done by the Public Protector here exceeded the parameters of interpretation.

60. The Public Protector’s report reveals that, on the facts placed before her, she accepted that the President did not wilfully mislead Parliament. This meant that he could not have violated the Code. The Public Protector then changed the wording of the Code to include “deliberate and inadvertent misleading” so as to match with the facts. Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code. It is unacceptable that the Public Protector did what no law had authorised her to do.

61. It was the wrong approach adopted by the Public Protector here which led her astray. Instead of evaluating the President’s conduct against paragraph 2.3(a) of the Code, she measured it against a standard she had created. This is plain from her findings as recorded in the report. On the question whether the President wilfully misled Parliament, the findings read:

“7.1. Regarding whether on 06 November 2018 during question session in Parliament, President Ramaphosa deliberately misled the National Assembly and thereby acted in violation of the provisions of the Executive Ethics Code and Code of Ethical Conduct and Disclosure of Members Interests for Assembly and Permanent Council Members.

7.1.1 The allegation that on 06 November 2018 during question session in Parliament, President Ramaphosa deliberately misled the National Assembly, is substantiated.

7.1.2 President Ramaphosa’s statement on 06 November 2018 in his reply to Mr Maimane’s question albeit defective in terms of the Rules of the National Assembly, was misleading, as he also conceded in his correspondence to my office on 01 February 2019, and even in his subsequent letter to the Speaker of the National Assembly on 14 November 2018 where he sought to correct the incorrect information he had provided in the National Assembly.

7.1.3 Consequently, President Ramaphosa’s reply was in breach of the provisions of paragraph 2.3(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the Legislature. He deliberately misled Parliament, in that he should have allowed himself sufficient time to research on a well-informed response.

7.1.4 I therefore find President Ramaphosa’s conduct as referred to above although ostensibly in good faith, to be inconsistent with his office as a member of Cabinet and therefore in violation of section 96(1) of the Constitution, as referred to above.”

62. It was this wrong approach which drove the High Court to concluding that her finding on the issue whether the President misled Parliament was flawed “due to a material error of law”. That Court stated:

“In her treatment of this issue the Public Protector demonstrated a fundamentally flawed approach to the principles underpinning the question of whether the President violated the Executive Code by wilfully misleading Parliament. It is to be expected of the Public Protector to proceed from the premise of the correct formulation of paragraph 2.3(a); to understand what the test is that must be applied to determine whether there has been a violation; and finally, to pronounce a conclusion that can be clearly understood and is in line with that test. Unfortunately, the Public Protector’s approach to the issue, in this case, falls far short of this.

In this regard, the Public Protector’s finding on the misleading of Parliament issue is fatally flawed due to a material error of law. For this reason alone, the finding warrants review and setting aside. However, there are further reasons for reaching the same conclusion.”²⁶

63. The High Court’s conclusion that the Public Protector’s findings should be set aside on the material error of the law point alone, cannot be faulted.

Duty to disclose donations to CR17 campaign

64. The Public Protector’s findings under this heading are framed in confusing terms. The heading suggests that the report is dealing with the question whether the President “exposed himself to any situation involving the risk of a conflict between his official duties and his private interest or used his position to enrich himself and his son through business owned by African Global Operations”. This heading is typed in bold letters as is done with each heading under the section of the report setting out the findings.

65. Surprisingly, this heading includes the issue whether the President used his position to enrich himself and his son through businesses owned by African Global Operations. It will be recalled that the written complaint merely stated that there was a probability of an improper relationship between the President and his family on one side and African Global Operations, on the other. The issue of the President having enriched himself and his son was added by the Public Protector. On a reading of section 4 of the Members Act, it is doubtful that the Public Protector may expand the scope of a complaint submitted to her with “full particulars of the alleged conduct” as prescribed by the section.

66. Moreover, under the Code, the prohibition against self-enrichment or improperly benefitting others is a self-standing prohibition that is separate from the one of exposing oneself to a conflict between official responsibilities and private interests. The essential elements of the latter prohibition are: (a) official responsibilities; (b) private interests; (c) the risk of a conflict between (a) and (b); and (d) a member’s conduct that exposes him to that risk.

67. The Public Protector makes sweeping findings which do not show how the President exposed himself to a situation involving the risk of a conflict between his official duties and private interests. It is difficult to appreciate how the breach of this prohibition was established without identifying the President’s private business and his official responsibilities, in respect of which he had exposed himself to a risk of a conflict.

68. The relevant findings by the Public Protector read:

“7.2 Regarding whether President Ramaphosa improperly and in violation of the provisions of the Executive Ethics Code and Disclosure of Members’ Interests for the National Assembly and Permanent Council Members exposed himself to any situation involving the risk of a conflict between his official duties and his private interest or used his position to enrich himself and his son through businesses owned by African Global Operations.

7.2.1 The allegation that President Ramaphosa improperly and in violation of the provisions of the Executive Ethics Code and Disclosure of Members’ Interests for the National Assembly and Permanent Council Members exposed himself to any situation involving the risk of a conflict between his official responsibilities and his private interests or used his position to enrich himself and his son through businesses owned by AGO, is substantiated.

7.2.2 In light of the evidence before me, it can be safely concluded that the campaign pledges towards the CR17 campaign were some form of sponsorship, and that they were direct financial sponsorship or assistance from non-party sources other than a family member or permanent companion, and were therefore benefits of a material nature to President Ramaphosa.

7.2.3 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.

7.2.4 I have evidence which indicates that some of the money collected through the CR17 campaign trust account was also transferred into the Cyril Ramaphosa Foundation account from where it was also transferred to other beneficiaries.

7.2.5 President Ramaphosa at the time of receipt of the donations, was the Deputy President of the Republic of South Africa and a Member of Parliament. He was therefore bound by the Code of Ethical Conduct and Disclosure of Members’ Interest for Assembly and Permanent Council Members, to declare such financial interest.

7 .2.6 I therefore find President Ramaphosa’s failure to disclose financial interest which accrued to him, as a result of the donations received towards the CR17 campaign to be in violation of paragraph 2 of the Executive Ethics Code, and accordingly amounts to conduct that is inconsistent with his office as member of Cabinet, as contemplated by section 96 of the Constitution.”

69. First, the issue whether the President exposed himself to a situation involving the risk of a conflict is mentioned in the first subparagraph following the heading. The point made there is that the allegation that the President violated the Code and the Members Act by exposing himself to the risk of a conflict or used his position to enrich himself and his son, is substantiated. It will be recalled that here the Public Protector is recording her findings, following her evaluation of the evidence. The form in which subparagraph 7.2.1 is framed suggests that the Public Protector was not sure upon which of the two grounds the allegation rested and was established. Otherwise it makes no sense to say an allegation based on one or the other ground was substantiated. If both grounds were proved, the report would say so or if only one was established it would expressly say so. Instead of saying one or the other.

70. Notably all the remaining subparagraphs are dedicated to the conclusion that the President breached the Code by his failure to disclose donations made to the CR17 campaign. All of this has nothing to do with the heading that the President exposed himself to the risk of conflict or used his position to enrich himself and his son. Instead these subparagraphs address the President’s failure to disclose donations made to the CR17 campaign. It is not clear why this issue which was raised separately in the complaints is treated as part of the issues contained in the relevant heading.

71. But what is most concerning is the quality of the reasoning leading up to the various findings. For example, in subparagraph 7.2.2 the Public Protector reasoned that it can be safely concluded that the campaign pledges towards the CR17 campaign were some form of sponsorship. And she proceeds to state that “there were direct financial sponsorship or assistance from non-party sources other than a family member or permanent companion”. And then she deduces from these facts that the donations to the CR17 campaign were benefits of a material nature to President Ramaphosa.

72. The Public Protector reached the conclusion that the President, as then Deputy President of the country, had personally benefitted from donations made to the CR17 campaign. But her own report which contains the summary of the evidence she heard during the investigation, does not support this conclusion. Nowhere in the report has the Public Protector recorded evidence that shows that the President had personally benefitted. From paragraphs 5.3.9 up to 5.3.10.67, the report sets out a comprehensive summary of all the evidence the Public Protector had as a result of her investigation.

73. Having identified witnesses who were interviewed, the report sets out in summary form the evidence of each witness. These included the managers of the CR17 campaign. With regard to Ms Donne Nicol, one of the managers, the report states:

“She also confirmed virtually all what the other two (2) members of the fundraising campaign had mentioned. For instance the pre-condition made to the donors that they should not expect any favours for having contributed to the campaign, as well as their identities and amounts pledged being deliberately concealed from President Ramaphosa.”

74. Despite acknowledging that the campaign managers corroborated one another in their oral testimony, the report reveals that the Public Protector preferred evidence in the form of e-mails which indicated that the President had played an active role in the affairs of the CR17 campaign. On this issue, the report reads:

“5.3.10.25 Notwithstanding the unanimous statements by the CR17 campaign managers to me that it had been agreed that the identities of the donors and the amount donated by them should not be disclosed to President Ramaphosa, evidence adduced has revealed the contrary.

5.3.10.26 Evidence adduced in a form of e-mails, invitations and instructions confirm that President Ramaphosa was constantly informed of the activities of the CR17 campaign by the campaign managers whereupon his advice and approval on specific matters, would from time to time be sought.

5.3.10.27 I have therefore established that in addition to having met with the potential donors during the banquet functions, where he delivered key note addresses, evidence further confirms that President Ramaphosa had had further and broader interactions with the donors, some of whom he knew very well.”

75. Apart from those e-mails which suggested that the President was more involved in the affairs of the campaign than the managers had testified, there is no other evidence that links the President with the campaign.

76. The question which the Public Protector’s report does not address is how the divergence between the managers and the e-mails was resolved. It appears that the Public Protector simply chose the e-mails over the managers’ oral testimony which she disregarded. This was inconsistent with the principles laid down by the Supreme Court of Appeal in Mail & Guardian,²⁷ a decision to which the report refers. That decision affirms that the objective of investigations by the Public Protector is to discover the truth. Where the investigation yields disparate pieces of evidence which do not fit into place, the Public Protector must continue digging until the true picture emerges. As Nugent JA observed in that case:

“The Public Protector has no place summarily dismissing any information. His or her function is to weigh the importance or otherwise of the information and if appropriate to take steps that are necessary to determine its truth.”²⁸

77. Mail & Guardian makes plain that the duty of the Public Protector is not only to discover the truth but is also to inspire public confidence that in each investigation, the truth has been discovered.²⁹ Where the evidence is inconclusive or diverges, the Public Protector is obliged to carefully evaluate it to determine the truth. At the end, she must be in a position to say that the truth has been revealed.

78. Here, the truth which the Public Protector was seeking was whether the President had personally benefitted from the CR17 campaign donations. She has failed to discover this. The manager’s testimony was to the effect that he did not benefit personally. But even if this evidence was to be rejected, there is just no evidence that established a personal benefit. The e-mails on which the Public Protector relied simply showed that the President was more involved in the affairs of the campaign. This is not the same as receiving personal benefits.

79. Moreover, the Public Protector could not disregard the evidence of the campaign managers solely on account of the e-mails that diverged with that evidence on the involvement of the President in the campaign’s affairs. Instead, she was required to evaluate those witnesses’ credibility and reliability of their testimony on the one hand and the authenticity and reliability of the e-mails, on the other. And she should have also tested each version against the probabilities. When the versions placed before the Public Protector diverged on some of the relevant issues, she could not without more prefer one version over the other.³⁰ The truth is established by facts and not one’s preference.

80. In these circumstances, the duty of the President to disclose under the Code was not triggered. On the basis of the uncontroverted facts, he did not personally benefit from the donations made to the CR17 campaign. Under the Code, the duty to disclose is activated once a benefit is given to a member of Cabinet in his or her personal capacity.

81. However, in argument the EFF submitted that the President could not avoid disclosure by wilfully remaining ignorant of donations made to the CR17 campaign. This submission misses the point. The issue is not whether the President deliberately kept himself ignorant of matters he was required to disclose. Instead, the question is whether there was proof that he personally benefited from the CR17 campaign donations. The EFF did not point to any evidence on record which established that the President benefitted in his personal capacity because such evidence was not placed on record. It does not exist.

82. Without proof of that kind, it cannot be said that the President failed to disclose benefits he was under a duty to disclose. It bears emphasis that there must first be a benefit to a member of Cabinet for him or her to be obliged to make a disclosure in terms of the Code. In the absence of proof of a personal benefit to the President, the High Court concluded that he did not fail to make a disclosure.

83. In the entire report the Public Protector has not even once referred to any evidence that indicates that the President benefitted personally from the CR17 campaign donations. The absence of such evidence was expressly raised in the representations made by the President in response to the interim report. As recorded in the final report, the President had submitted:

“The Executive Ethics Code only requires members to disclose their own financial interests. The President never had any financial interest in the donations made to CR17. The money was donated to CR17. The President did not have any claim to the money or any say over it, with the exception of amounts he himself loaned to the campaign. He never received any of it. It thus remained CR17’s money alone.”

84. In rejecting this argument, the Public Protector did not refer to a single piece of evidence which showed that the President had in fact received money or a personal benefit from the CR17 campaign. Instead she stated:

“I have also established that some of the donors to the CR17 campaign could have been doing business with the state, and just like AGO (Bosasa) with several long-standing government contracts, stood to benefit substantial financial returns from such big government contracts. However, the risk in these circumstances is the potential that we would be having a President that would be beholden to such donors, thereby causing the manifestation of capture of the state.

It is therefore against such potential capture, that all South African state functionaries, including the Executive, should guard against exposing themselves to a situation involving the risk of a conflict between their official responsibilities and private interests in violation of section 96 of the Constitution.

President Ramaphosa at the time of receipt of the donations, was the Deputy President of the Republic of South Africa and a Member of Parliament. He was therefore bound by the Code of Ethical Conduct and Disclosure of Members’ Interest for Assembly and Permanent Council Members, to declare such financial interest.”³¹

85. This reasoning fails to address the point raised by the President, namely, that he received no donations and that he had no claim or say over money donated to the CR17 campaign. Instead, in a confusing manner, the Public Protector addressed the issue of members of Cabinet exposing themselves to a potential risk of conflict of interest between their official responsibilities and private interests. This had no bearing whatsoever on the issue whether the President received donations.

86. What the Public Protector was required to do in order to address the President’s argument, was to refer to facts which established that the President received donations and that he failed to declare them. If such facts existed, the Public Protector would have referred to them in dealing with the President’s argument. The omission of those facts from her report is not an oversight. They simply do not exist.

87. In the final paragraph of the Public Protector’s reasoning quoted above, she suggests that the President received donations which he was obliged to disclose under the Code and the Members Act. This is a finding made without a shred of evidence supporting it. On the contrary, the evidence placed before the Public Protector which is also reflected in the report, establishes that the President did not receive donations. Therefore, the argument advanced by the President was in line with the evidence on record. On the basis of the undisputed evidence, it was the CR17 campaign that received donations and not the President.

88. It is a leap in logic to hold that the President personally benefitted from the donations made to the CR17 campaign. That campaign, on the undisputed evidence, existed separately from the President. And there was no evidence that it was appointed to act as his agent. There is therefore no basis in law to regard donations to the CR17 campaign as personal benefits to the President.

89. In relation to the relevant findings, the High Court said:

“The Public Protector’s finding that the President received direct financial sponsorship through the CR17 campaign was based on her conflation of that campaign with the President. What she had before her was a full explanation as to how the CR17 campaign spent the money that it raised. This showed that it funded the entire broad‑based CR17 campaign. There was no evidence that it was used to pay the President’s expenses. On the contrary, the President himself contributed to the CR17 campaign, as did many other ANC members. The Public Protector has not identified any evidence nor facts to substantiate her conclusion that he received direct personal sponsorship through the campaign.

The same goes for her finding that he received campaign contributions through the CR17 campaign that benefitted him in his personal capacity. This conclusion again emanated from her conflation between the CR17 campaign and the President. There was simply no evidence that the President received personal financial benefit from any campaign contributions. From her Report it appears that the Public Protector was concerned about transfers from the CR17 campaign accounts to the Cyril Ramaphosa Foundation (the CRF). However, the facts before her clearly established that neither the President nor his family were beneficiaries of the CRF, neither did they receive funds from it. The Public Protector had no contrary evidence at her disposal.”³²

90. The contention that the President personally benefitted from donations made to the CR17 campaign because one of the campaign’s objectives was to promote his candidacy to becoming President of the ANC, a step towards becoming President of the country, is at a first blush attractive. But it cannot withstand scrutiny. The contention rests on a number of assumptions that are without factual and legal foundation.

91. In the first place, the Code does not apply to matters which are not state affairs like internal party elections. According to section 2 of the Members Act, the objective of the Code is the promotion of an open, democratic and accountable government. And members of Cabinet are obliged to comply with the Code when performing their official responsibilities. In an attempt to overcome this obstacle, the argument seeks to link the election of the President of the ANC to being President of the country. But this falters at the starting line. In our multi-party system, being President of a political party is not a guarantee to being President of the country. Under our Constitution, there can be only one President at any given time. This means that a number of party Presidents cannot be President of the country. Moreover, the Constitution tells us that the President of the country is elected by the National Assembly.³³

92. The National Assembly consists of women and men elected by voters in terms of an electoral system. But it is the political parties themselves which contest elections and they alone decide who, among their members, would become members of the National Assembly. Representation of each party in the National Assembly depends on votes received by them. Therefore, even though a President of a political party may wish to be President of the country and his or her party makes him or her a member of the National Assembly, he or she may not succeed if the party failed to get majority votes at the elections. Even if it did get a majority of votes, it would still depend on whether members of the party wish to vote for their party President. There are many variables that occur before one is elected President of the country. The contention overlooks all of this.

93. But even if it were to be said that there was proof of a personal benefit, the Public Protector’s finding was fatally defective. She was plainly not authorised to investigate the issue whether the President personally benefitted from donations made to the CR17 campaign. The condition precedent for undertaking such investigation did not exist. Section 4 of the Members Act mandates the Public Protector to investigate violations of the Code only if there is a complaint by one of the persons listed in the section. Here, the complaints received by her did not require her to investigate the President’s failure to disclose benefits derived from the CR17 campaign donations.

94. As appears from footnote 16, the complaint by the leader of the official opposition required the Public Protector to investigate three issues. These were an improper relationship between the President and his family on one side, and African Global Operations on the other side; the suspicion of money laundering; and whether the President lied to the National Assembly. As appears from paragraph 36, the complaint by the Deputy President of the EFF asked the Public Protector to investigate two issues. These were whether the statement made by the President in the National Assembly, to the effect that he saw a contract between African Global Operations and his son, was true; and whether the President had deliberately misled Parliament in violation of the Code.

95. None of these complainants had asked the Public Protector to investigate the President’s failure to disclose benefits he derived from the CR17 campaign. The only reference made to donations in the complaint by the leader of the official opposition was in relation to the issue of money laundering. Evidently, the complaint was not that the President is suspected of having laundered money. The complaint was that the donation made by African Global Operations passed through several intermediaries and that gave rise to the suspicion of money laundering. But the evidence by the donor and the person who made the payment quashed the suspicion.

96. In our law, where the exercise of public power depends on the existence of certain conditions, such power cannot be validly exercised in the absence of those conditions.³⁴ This simply means that here the Public Protector purported to investigate the President’s failure to disclose benefits without the existence of a complaint. Consequently, her purported investigation of this issue and the remedial action she took were invalid because the investigation was unlawfully undertaken.

97. I am not persuaded that any of the conclusions reached by the High Court should be overturned.

Competence to investigate the affairs of the CR17 campaign

98. The President succeeded in having the Public Protector’s decision to investigate the CR17 campaign set aside. He had argued that the affairs of the campaign fell outside the jurisdiction of the Public Protector. The Public Protector and the EFF seek to overturn this decision of the High Court.

99. This is a legal question which must be answered with reference to the empowering provisions of the Constitution and relevant legislation. Section 182(2) of the Constitution provides that in addition to powers listed in section 182(1), the Public Protector has additional powers prescribed by legislation.³⁵ The Public Protector Act and the Members Act constitute legislation contemplated in the Constitution.

100. The Public Protector Act lists additional powers of the Public Protector in section 6. Section 6(4) empowers the Public Protector to investigate maladministration in connection with the affairs of government; abuse of public powers and improper or unlawful enrichment by a person as a result of an act or omission in the public administration.³⁶ Whereas section 6(5) confers similar powers on the Public Protector in respect of state-owned entities.³⁷ Evidently, none of the powers flowing from section 6 of the Public Protector Act cover the affairs of the CR17 campaign.

101. For its part, the Members Act authorises the Public Protector to investigate alleged breaches of the Code only. Even so, the Public Protector may undertake an investigation only after receipt of a complaint envisaged in section 4 of the Members’ Act. Although there have been alleged breaches of the Code, none related to the general affairs of the CR17 campaign. In fact, there is no mention of the CR17 campaign in the complaints received by the Public Protector. Accordingly, the Members Act too did not empower the Public Protector to investigate the affairs of the CR17 campaign.

102. This leaves section 182(1) of the Constitution as the only possible source of the Public Protector’s power. It provides:

“The Public Protector has the power, as regulated by national legislation—

(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;

(b) to report on that conduct; and

(c) to take appropriate remedial action.”

103. This provision empowers the Public Protector to investigate any conduct in state affairs or in the public administration. This means the scope of the power is limited to state affairs and affairs of the public administration. There can be no doubt that the CR17 campaign was engaged in the affairs of the ANC, which is a political party. The fact that it was the ruling party at the relevant time did not make it a part of the public administration. But in this Court the EFF argued that as a ruling political party, the ANC “undoubtedly influences the direction of the State”. While this is true, it does not mean that the ruling party and the state become one entity. Ordinarily, political parties win elections on the basis of their policies and manifestos. This occurs worldwide. And once they assume power, they promote the policies that won them the elections. But the bright line separating the party from the state remains intact. This is clear from the provisions of the Constitution which establishes three branches of the state. In our system, political parties are represented in the legislative and executive arms of the state. It is a multi-party system. That is why various parties have members representing them in Parliament. And sometimes the President does appoint members of opposition parties into Cabinet. Representation in a particular body does not mean that the represented entity becomes part of the body where the representation occurs.

104. With reference to decisions dealing with elections to various legislative bodies, the EFF argued that internal elections in a political party must be taken as amounting to a state affair. It contended that those party elections are a step towards membership of the state legislative bodies. This argument is flawed. First, the elections to legislative bodies are contested by political parties in their own right. Internal party elections are contested by individual members of the party in question. Second, elections to state legislatures are regulated by law and conducted by a public body, exercising public power. No public power applies to private and internal party elections. Third, in terms of the law, it is the political party that determines the list of candidates who would represent it in each legislative body. There is no law that obliges a party to put its office‑bearers on that list. Consequently, being elected to a position within the party does not guarantee those elected a place in state legislatures.

105. The question remains whether the ruling political party in our system is an integral part of the state and whether its affairs are state affairs, as contemplated in section 182(1) of the Constitution. The Constitution does not define “the state”. Nor does it define “state affairs”. The term “state affairs” used in section 182 must mean affairs of the state. Clearly this section draws a line between affairs of the public administration and those of the state, and it empowers the Public Protector to investigate affairs of both entities. Both the Public Protector and the EFF did not argue that the CR17 campaign donations constituted conduct in the public administration. Their contention was that “state affairs” must be given a wider meaning and that when it is read this way, the phrase includes political parties which play a crucial role in our democratic government.

106. Although the Constitution does not define “state”, it does define “organ of state” as any department of state or administration in all spheres of government, or any functionary or institution exercising a public power or performing a public function in terms of the Constitution or legislation.³⁸ It is explicit from the definition that organ of state is a concept that extends beyond what the state as an institution means. An organ of state can be a private company or an individual exercising public powers or performing public functions in terms of the Constitution or legislation. What is crucial is that the entity must exercise a public power or perform a public function.

107. What turns an otherwise private entity into an organ of state is the exercise of a public power or the performance of a public function. This is vital in determining whether a particular conduct amounts to a state affair. There can be no state affair without the exercise of public power or the performance of a public function. This is the dividing line between state affairs and private affairs. When a political party holds internal elections, it does not exercise a public power. Nor does it perform a public function in terms of the Constitution or legislation. Instead, it acts in terms of its constitution which constitutes a contract between it and its members. Therefore, its affairs do not fall within the scope of matters to be investigated by the Public Protector under section 182(1) of the Constitution.

108. In its written submissions, the EFF conceded that the High Court may have been correct in its interpretation of section 182(1) of the Constitution. But it argued that the jurisdiction of the Public Protector to investigate the affairs of the CR17 campaign was sourced from section 96(2)(b) of the Constitution.³⁹ There is no merit in this submission. This section prohibits members of Cabinet from acting in a way that is inconsistent with their office or exposing themselves to the risk of a conflict between their official responsibilities and private interests. For this prohibition to be breached, there must have been a forbidden conduct by the member of Cabinet.

109. But more importantly, the Public Protector’s powers to investigate violations of section 96 is limited by sections 3 and 4 of the Members Act. There must be a written complaint about a breach of the Code. None of the complaints submitted to the Public Protector referred to the affairs of the CR17 campaign, let alone that those affairs were in breach of the Code. The High Court was correct in concluding that the Public Protector had no authority to investigate the affairs of the CR17 campaign.

Improper relationship between the President and African Global Operations, raising the suspicion of money laundering

110. The Public Protector held in her report that the allegation made in the complaint of the leader of the official opposition had merit. The complaint had stated that facts set out in it revealed a possibility of an improper relationship between the President and his family on the one side, and African Global Operations on the other, due to how the payment of R500 000 was made, which gave rise to a suspicion of money laundering. According to this allegation, what raised suspicion was the manner in which the donation to the CR17 campaign was made. The evidence summarised in the Public Protector’s own report indicates that neither the President nor his family participated in the transfer of that amount. The transfer was made by an employee of African Global Operations, on the instructions of its CEO, Mr Watson. The R500 000 was part of the sum of R3 million which was transferred from Mr Watson’s personal account into the account of a company called Miotto Trading which belonged to the employee who was instructed to transfer R500 000 to a trust account held on behalf of the CR17 campaign. It is puzzling that despite the evidence placed before her, the Public Protector would conclude that the allegation has merit.

111. It appears that she disregarded all that evidence and reached a conclusion that was devoid of any factual foundation. The Constitution and relevant legislation require that the Public Protector must conduct proper investigations, rightly evaluate the evidence placed before her and make findings which are supported by established facts.⁴⁰ Here the Public Protector’s approach falls short of this standard. I agree with the following observation by the High Court:

“Clearly the Public Protector had no foundation in fact and in law to arrive at her finding that the President had involved himself in illegal activities sufficient to evoke a suspicion of money laundering. In addition the Public Protector based her finding on legislation that has nothing to do with the offence of money laundering. The conclusion is inescapable that in dealing with this issue the Public Protector completely failed to properly analyse and understand the facts and evidence at her disposal. She also showed a complete lack of basic knowledge of the law and its application. She clearly did not acquaint herself with the relevant law that actually defines and establishes the offence of money laundering before making serious unsubstantiated findings of money laundering against a duly elected head of state. Had she been diligent she would not have arrived at the conclusion she did.”⁴¹

112. But the absence of facts is not the only defect. The Public Protector once again misconstrued the empowering legislation. The complaints to her were made in terms of section 4 of the Members Act which stipulates that the complaints should relate to an alleged breach of the Code. The Code does not refer to money laundering and yet the Public Protector treated the allegation as separate and dedicated a large portion of the report to addressing it and making a finding specifically on it. It appears that the Public Protector was aware that the Members Act did not empower her to investigate the money laundering allegation and she invoked the Prevention and Combating of Corrupt Activities Act⁴² (PCCA), whose specific provisions were cited and interpreted in her report.

113. The Public Protector’s report concludes its analysis of the PCCA by stating:

“My investigation into the issue pertaining to possible money laundering is premised on the above legislation dealing with corruption and applies not only to private individuals who offer bribes, but also to private individuals who accept bribes.

It would therefore have been remiss of me not to deal with this aspect of the complaint so as to be able to confirm or dispel with any such suspicion as referred to in the allegations brought before me by the complainants.”

114. Having interpreted the PCCA, the Public Protector concluded that it criminalises corrupt activities and other forms of organised and financial crimes including money laundering.⁴³ But as the High Court rightly pointed out, the PCCA does not create the crime of money laundering. Before us, counsel for the Public Protector attempted to explain this as the innocent reference to the incorrect Act. There is no merit in this submission. The report quotes extensively from the provisions of the PCCA which the Public Protector interpreted to be criminalising financial crimes including money laundering. This illustrates plainly that she misconstrued the PCCA. In fact, a reading of the report shows that she equated money laundering to corruption and bribery.

115. Having investigated the money laundering allegations, the Public Protector decided to dispose of them in terms of section 6(4)(c)(i) of the Public Protector Act.⁴⁴ Once more the Public Protector overlooked the fact that this provision is triggered where the facts disclose the commission of an offence during the course of dealing with a matter that properly falls within her competence. This disclosure must occur at any time, before, during or after an investigation of an issue listed in section 6(4). Money laundering is not one of the matters listed in section 6(4) as falling within the competence of the Public Protector. And apart from specified offences under the PCCA, crime is not reported to the Public Protector for investigation. The Constitution empowers the police service to investigate crime.⁴⁵ Yet here the Public Protector undertook to investigate an allegation on money laundering made by the leader of the official opposition. This differs from stumbling upon money laundering facts during an investigation.

116. With regard to the allegation that the President and his family were involved in illegal activities that gave rise to the suspicion of money laundering, the High Court held that the finding lacked legal and factual foundation. This conclusion is unassailable.

Audi principle

117. There has been uncertainty in court decisions on whether the Public Protector’s remedial action constitutes administrative action. In a number of matters, the High Court has held that it does.⁴⁶ The implication of this was that PAJA applies to the decision making leading up to the remedial action in question. PAJA proclaims procedural fairness which is inclusive of the audi principle.

118. But the Supreme Court of Appeal came to the opposite view in Minister of Home Affairs.⁴⁷ Relying on certain factors that Court concluded that decisions of the Public Protector are not administrative in nature. Those factors included that the Public Protector is not part of the Executive and that she exercises “constitutional powers and other statutory powers of a public nature”. I am not convinced that the factors on which the Supreme Court of Appeal relied support the view that those decisions do not constitute administrative action. The fact that a power is derived directly from the Constitution does not mean that its exercise cannot be administrative. Indeed the Supreme Court of Appeal characterised that power as being of a public nature. It will be recalled that administrative action comes into existence from the exercise of public power.

119. Evidently, the Supreme Court of Appeal, contrary to the jurisprudence of this Court, laid more emphasis on the identity of the functionary that exercised the power than the nature and impact of the power on those against whom it was exercised. This Court has ruled that the focus of the enquiry into whether the exercise of power amounts to administrative action should be on the nature of the power itself rather than the functionary who exercises it.⁴⁸

120. Since the application of the audi principle does not depend on whether the exercise of power constitutes administrative action, a definitive conclusion by this Court on whether the Public Protector’s remedial action is administrative action, is not essential. I prefer to leave this question open for now.

121. There can be no doubt that findings made by the Public Protector may be damaging to those who are the subject of investigations. Those findings may condemn those who are investigated or ruin their reputations and careers. The Public Protector’s report may expose those investigated by her to unwelcome criminal or civil proceedings. These are serious consequences for the investigated persons.

122. The duty for the Public Protector to act fairly is entrenched in section 7(9) of the Public Protector Act. It reads:

“(a) If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.

(b) (i) If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.

(ii) Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section.”

123. Whenever an individual is implicated during the course of an investigation, the Public Protector is obliged to afford such person an opportunity to respond to the implicating evidence, if the implication may be detrimental to that person or if a finding adverse to him or her is anticipated. The form or manner of the response depends on the circumstances of each case. For example, if the implication was made in a sworn statement, a response in a sworn statement would suffice.

124. Where that implication was made in oral testimony, the implicated person would be entitled to adduce controverting evidence before the Public Protector. In addition, that person has a right to question witnesses who gave the relevant testimony. This questioning must be done through the Public Protector. Implicit in this process is that the affected person would be afforded an opportunity to make representations on the relevant evidence. Ordinarily the questions should be put to witnesses in the presence of the affected person or her legal representative.

125. It cannot be gainsaid that the Public Protector’s investigation may implicate the rights in the Bill of Rights. Consequently, the Public Protector Act in terms of which those investigations are undertaken must be interpreted in a manner, where reasonably possible, that promotes the objects of the Bill of Rights.⁴⁹ Section 7(9) declares that if it appears to the Public Protector at any time during the course of an investigation that an adverse finding or a detrimental implication may result, the Public Protector must afford the affected person a hearing. Implicit in the language of section 7(9) is that where it appears that a particular remedial action adverse to the affected person may be taken, the Public Protector should afford that person an opportunity to make representations on the contemplated remedial action. If the section were to be read otherwise, the procedural fairness it guarantees would be seriously undermined. There is no reason in principle or logic that fairness envisaged in the provision should be restricted to findings or implication by evidence. The bigger risk to the affected person’s rights is posed by the remedial action. And section 7(9) should not be given a meaning that is antithetical to the rule of law.

126. For all these reasons, I conclude that when the Public Protector contemplates taking remedial action against the subject of an investigation, that subject is entitled to an opportunity to make representations on the envisaged remedial action. For a proper opportunity to be given, the Public Protector must sufficiently describe the remedial action in question to enable the affected person to make meaningful representations.

127. The High Court here held that the Public Protector’s remedial action had serious implications for the President, including being a suspect in a criminal charge that carries a punishment of up to 30 years’ imprisonment. The High Court concluded that the failure to afford the President a hearing before the decision on the remedial action was taken was fatal to the validity of that remedial action. This conclusion too is beyond reproach.

128. In addition, the President has complained that the e-mails on which the Public Protector relied were not disclosed to him and that he was denied the opportunity to make representations on those e-mails. In his supplementary affidavit, the President stated:

“Furthermore, these e-mails were not raised in the Notice, and first made an appearance in the Report without affording me an opportunity to address them before the Public Protector concluded her investigation.

The mere fact that what could be improperly obtained evidence has been used in the investigation is enough to vitiate the Report.”

129. In her answering affidavit, the Public Protector does not dispute that the e-mails were not disclosed and that the President was not afforded a hearing on them. She responded in these terms to the relevant allegations:

“It is telling that Instead of denying the contents of the e-mail, the President complains about how I obtained the e-mails to which I refer. I receive many documents from anonymous whistle blowers. These e-mails were provided to my Office anonymously and in hard copies. It is for that reason that I have no metadata in respect thereof.

However, even if I knew the identities of whistle blowers, I have an obligation to protect them. What the President has to do is to take this Honourable Court and the country at large into his confidence and explain the contents of these e-mails. I deny that I obtained the e-mails unlawfully.”

130. While it may be true that the Public Protector had lawfully obtained the e-mails and was entitled to have regard to them during the investigation, she was under a legal duty to disclose them to the President and afford him the opportunity to counter them if he was able to do so or that he makes whatever representations he may have wished to make on the e-mails.⁵⁰ It is a basic principle of our law that if a decision-maker is in possession of information that is adverse to the person against whom a decision is imminent, that such information be disclosed to the person concerned and that he or she be given the opportunity to deal with that information. Our jurisprudence shows that a decision based on adverse information which was not disclosed to the affected person and in respect of which that person was not heard, is fatally defective and ought to be set aside.⁵¹

131. Here the Public Protector based her crucial findings on the e-mails which were delivered by anonymous persons at her offices, without disclosing them to the President and affording him the opportunity to make representations. Notably, the authenticity of those e-mails was not established. In relying on them in the circumstances of this case, the Public Protector violated the audi principle and her findings, based on the e‑mails, must be set aside.

Remedial action

132. Apart from the fact that the remedial actions taken here were vitiated by the failure to afford the President a hearing, there are additional reasons which render them invalid. The first is that the Public Protector ordered the Speaker of the National Assembly to take steps in respect of which she had no authority in law. She ordered her to refer the President’s “breach” of the Code to the Joint Committee on Ethics and Members’ Interests for consideration. As the President is not a member of Parliament, the Speaker has no power to make the referral in question and the Joint Committee too has no authority over non-members. The Public Protector does not have authority, by the stroke of a pen, to empower both the Speaker and the Joint Committee to take steps that exceed their mandate.

133. This applies with equal force to the remedial action directing the Speaker to “demand publication of all donations received by President Ramaphosa because as he was the then Deputy President”, he was obliged to disclose such financial interests on the register of financial interests.⁵² To begin with, this part of the remedial action is vague. It requires a demand for publication of all donations received by the President whilst he was Deputy President, regardless of whether the donations had been disclosed. It does not state where this publication must be made. Nor does it state the source of the Speaker’s power to demand publication. It will be recalled that the Code requires disclosure in the register. And on established facts the relevant donations were not made to the President but to the CR17 campaign.

134. Having proper regard to the scheme of the Members Act, it is doubtful that the Public Protector can herself take remedial action for the violations of the Code. In terms of section 3 of that Act, it is the President who may take action if the culprit was a member of Cabinet or a Deputy Minister. With regard to MECs, the power vests in the Premier. But if the Premier herself had violated the Code, action may be taken by the NCOP. The Members Act is silent on violations by the President. It may well be that breaches by the President should be referred to the National Assembly for it to decide on action to be taken within its powers.⁵³

135. The difficulty here with regard to action which ought to be taken for the failure to disclose is that the alleged breach occurred whilst the President held the position of Deputy President. If the breach of the Code was established before the Public Protector, then she could have competently referred the matter to the then President in terms of section 3. But since the complaint was lodged after the President had assumed office, the Members Act does not cater for action to be taken against the President where he or she is responsible for violating the Code.

136. Furthermore, the Public Protector issued supervisory orders against the Speaker, the NDPP and the National Commissioner. Ordinarily, orders of this nature are necessary where there has been non-compliance with previous orders and there have been systemic violations of the law. Here, the circumstances are different. It is also not clear that the Public Protector has the power to order the relevant entities to report to her. For example, the Speaker presides over the National Assembly to which the Public Protector is accountable. All Chapter 9 institutions are accountable to the National Assembly.⁵⁴ The Public Protector must report on her activities and performance of her functions to the Assembly. It would be remarkable for her to have the competence of ordering the Speaker to account to her.

Errors in the Public Protector’s report

137. The Public Protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake. For example, giving the phrase “wilfully misleading” the meaning of “inadvertently misleading” for it to fit established facts. She disregarded uncontroverted evidence to the effect that the President did not personally benefit from the CR17 donations and stated that on the evidence placed before her, he benefitted personally. This finding was made when there was simply no evidence to the contrary. These are some of the disconcerting features of the impugned report.

138. The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the Code. This is surprising because the Public Protector is, by definition, a highly qualified and experienced lawyer. As required by law, she has no less than 10 years’ experience in the relevant field of law.⁵⁵

139. While the Public Protector has the leeway to determine the form to be followed in a particular investigation, her investigation must meet the basic benchmark of a proper investigation that is conducted with “an open and enquiring mind”. In Mail & Guardian the Supreme Court of Appeal defined this standard in these words:

“I think that it is necessary to say something about what I mean by an open and enquiring mind. That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring.”⁵⁶

140. Here, the questions asked by the Public Protector led to the undisputed fact that the President had no knowledge of the donations to the CR17 campaign and that he did not personally benefit from those donations. An open and enquiring mind would have accepted those facts and would not have proceeded to hold, without any evidence, that the President had personally benefitted from those donations. An open mind suggests that the Public Protector must be open to being persuaded to reach whatever conclusion justified by the facts. She may not approach any investigation with predetermined outcomes. An open and enquiring mind was not displayed here despite the reference to Mail & Guardian in the Public Protector’s report, as one of decisions she followed. On the contrary, she made findings that were not supported by the facts and it appears that she was “unduly suspicious” of the person she was investigating. Consequently, the investigation was improperly conducted.

AmaBhungane’s case

141. Although the High Court had found AmaBhungane’s case to have been compelling, it held for a number of reasons that the constitutional challenge mounted against the Code was not properly before it.⁵⁷ It is necessary to scrutinise each of these reasons to determine their cogency. First, the High Court held that the principle of constitutional subsidiarity stands in the way of the challenge by AmaBhungane. It is not clear how constitutional subsidiarity applies here. AmaBhungane challenges the validity of the Code made under the Members Act for not being consistent with the Constitution. And this challenge is not based on a right guaranteed by the Bill of Rights and in respect of which legislation was passed to give effect to it. The High Court itself records that AmaBhungane relies on section 96 of the Constitution to impugn the Code. The High Court’s reliance on the decision of this Court in My Vote Counts⁵⁸ was therefore misplaced.

142. Second, the High Court held that because the Code required disclosure of information, the Promotion of Access to Information Act⁵⁹ (PAIA) was applicable and that AmaBhugane may use it to obtain information on donations to internal political party campaigns. This misses the point. The issue is not whether there are other pathways leading to such information. Nor is it about access to information. The issue raised in the challenge is the invalidity of the Code which AmaBhungane contended is inconsistent with the Constitution.

143. Third, the High Court held that if the claim of invalidity by AmaBhungane were to succeed, this would mean that the duty to disclose would be restricted to members of the Executive only. This would not provide the full transparency necessary for the exercise of the right to vote by the voters. Again, this is immaterial. By design, the scope of the Code is limited to members of Cabinet and Deputy Ministers.

144. Fourth, the High Court held that in essence the relief sought by AmaBhungane was to amend the Code so as to require members of the Executive to disclose “donations made to campaigns for positions within political parties”. That Court concluded that this would undermine the principle of separation of powers. This is also incorrect. The consequential remedy of amending the Code is not a requirement for enquiring into the validity of the Code. The High Court could still determine the Code’s validity and declare it invalid, without amending it, if the amendment would not be a just and equitable remedy.

145. If the High Court were to find that the Code is inconsistent with the Constitution, that Court would have no choice but to declare the Code invalid.⁶⁰ A court is obliged to declare any law or conduct that is inconsistent with the Constitution to be invalid. It follows that the High Court erred in concluding that the challenge by AmaBhungane was impermissible. The High Court should have considered the merits of that claim. I consider it appropriate to remit the matter to the High Court for adjudication of the claim.

Costs

146. Ordinarily, the dismissal of the appeal would result in the applicants, except AmaBhungane, being liable for costs. But the Biowatch principle has altered this rule in constitutional litigation.⁶¹ According to this rule, if a private party is unsuccessful against the state, it should not be ordered to pay the costs of the state. However, here this applies to the EFF only. The rule does not apply to the Public Protector.

147. The position between the Public Protector on the one hand and the President, Speaker and the NDPP, on the other hand is different. Usually the parties that are successful on appeal would be entitled to their costs and the Biowatch principle would not apply between organs of state. However, all these parties used public funds to fund this litigation. If one of them is ordered to pay costs, effectively it will be the public which will bear that liability. In the circumstances, I consider it fair not to make a costs order.

148. AmaBhungane’s case is however different. It has succeeded on appeal and it is entitled to its costs in this Court. But it was only the President who opposed AmaBhungane’s appeal. Consequently, it is fair to order that the President alone should be liable for AmaBhungane’s costs.