Automated Summary
Key Facts
The Constitutional Court ruled that the Public Protector had no authority to investigate the CR17 campaign, a political fundraising initiative for Cyril Ramaphosa's ANC leadership bid, as it falls outside the scope of 'state affairs' or 'public administration' under the Constitution and Public Protector Act. The court found the President's failure to disclose donations to the CR17 campaign was not established due to lack of evidence showing personal benefit. The Public Protector's investigation into money laundering claims was also invalidated for misapplying legislation and failing to afford the President procedural fairness under the audi alteram partem principle. The appeal was partially dismissed, but AmaBhungane's constitutional challenge to the Executive Ethics Code was remitted to the High Court for further consideration.
Issues
- 2. Whether the President had a duty to disclose donations made to the CR17 campaign;
- 5. Whether the remedial actions taken here are lawful;
- 1. Whether the Public Protector correctly found that the President had misled Parliament in breach of the Code;
- 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;
- 6. Whether the High Court rightly declined to adjudicate AmaBhungane's constitutional attack in relation to the Code.
Holdings
- The Public Protector's investigation into the CR17 campaign is invalidated due to lack of jurisdiction.
- The appeal is dismissed except for AmaBhungane's claim, which is set aside and remitted to the High Court.
- The Public Protector's findings based on undisclosed emails are set aside for violating the audi principle.
- AmaBhungane's constitutional challenge against the Executive Ethics Code is remitted to the High Court.
- The President's failure to disclose donations to the CR17 campaign is not established as a breach of the Code.
- The President is ordered to pay AmaBhungane's costs in the Constitutional Court.
Remedies
- No order as to costs was made in respect of the parties, including Freedom Under Law.
- The appeal was dismissed except for the portions mentioned in the order.
- The matter was remitted to the High Court for determination of AmaBhungane's constitutional invalidity claim.
- The dismissal of AmaBhungane Centre for Investigative Journalism NPC's claim for constitutional invalidity of the Executive Ethics Code was set aside.
- The court granted leave to appeal to the Constitutional Court.
- The President of the Republic of South Africa was ordered to pay costs of AmaBhungane Centre for Investigative Journalism NPC in this Court, including costs of two counsel.
Legal Principles
- The Public Protector incorrectly expanded the term 'wilfully misleading' in the Code to encompass inadvertent errors, misapplying the literal rule of statutory interpretation. The court clarified that 'wilfully' and 'inadvertent' are mutually exclusive, requiring strict adherence to the text's plain meaning.
- The court ruled that the Public Protector's supervisory orders to the National Assembly encroached on the legislative branch's authority, violating the separation of powers principle. Remedial actions were deemed the domain of the executive or legislative bodies, not the Public Protector.
- The court emphasized that the Public Protector's authority to investigate the CR17 campaign was restricted by the Constitution and Public Protector Act, as the campaign was a political party matter outside her jurisdiction. This reinforced the principle that legal powers must be exercised within their defined scope.
- The court found the Public Protector breached natural justice by relying on undisclosed emails to form adverse findings against the President without affording him an opportunity to respond. This highlighted the necessity of procedural fairness in investigative processes.
Precedent Name
- Public Protector v Commissioner for the South African Revenue Service
- Key v Attorney General, Cape of Good Hope Provincial Division
- Paola v Jeeva N.O.
- My Vote Counts NPC v Speaker of the National Assembly
- My Vote Counts NPC v Minister of Justice and Correctional Services
- Nkabinde v Judicial Service Commission
- South African Defence and Aid Fund v Minister of Justice
- Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party
- Minister of Home Affairs v Public Protector
- South African Broadcasting Corporation SOC Ltd v Democratic Alliance
- President of the Republic of South Africa v South African Rugby Football Union
- Public Protector v South African Reserve Bank
Cited Statute
- Promotion of Access to Information Act 2 of 2000
- Constitution of the Republic of South Africa
- Public Protector Act 23 of 1994
- Executive Members' Ethics Act 82 of 1998
- Prevention and Combating of Corrupt Activities Act 12 of 2004
Judge Name
- Jafta
- Mathopo
- Mogoeng
- Madlanga
- Tshiqi
- Mhlantla
- Theron
- Victor
Passage Text
- [167] The emails squarely belie this assertion. The question that we should then be asking ourselves is: why did the President and his team deliberately convey a falsehood on an issue so crucial and inextricably connected to the constitutional imperative to promote and observe high ethical standards in obedience to the demands of our democratic State's founding values – openness and accountability.
- [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.
- [61] The Public Protector's report reveals that she thought 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.