CR points finger back at Mkhwebane
President says court attributed bias to him due to suspended public protector’s past conduct
President Cyril Ramaphosa has criticised the high court for holding that the constitutional court’s finding that Busisiwe Mkhwebane had not been impartial, when investigating his CR17 campaign, meant he, in turn, was not impartial when he moved to suspend her.
Ramaphosa raised this point in an application to the apex court for leave to appeal last week’s Western Cape high court ruling that Mkhwebane’s suspension in June was invalid because it was tainted by bias of a disqualifying kind.
The court said it was “irresistible” to conclude the suspension was precipitated by the fact the public protector had only days earlier launched an investigation against the president for alleged breach of the executive code of ethics, flowing from the so-called Farmgate scandal.
In his application, Ramaphosa submitted that the court was wrong on 11 counts, the first being to lean on justice Chris Jafta’s dismissal last year of Mkhwebane’s appeal to a high court order that set aside her CR17 report in which she found he had misled parliament and must be investigated for money laundering.
Jafta’s ruling was more damning than the many others made against Mkhwebane in the past five years. It said her misreading of the executive code could not have been innocent but pointed to bad faith in a quest to implicate the president in wrongdoing.
The judgment was cited by the Democratic Alliance (DA) in heads of argument opposing Mkhwebane’s application for an interdict barring the president from suspending her, pending the outcome of the ongoing parliamentary inquiry where she risks impeachment for misconduct and incompetence.
There, Mkhwebane had argued that Ramaphosa could not exercise his constitutional power to suspend her because, as the subject of several investigations run by her office, he was conflicted.
Like the president, the DA has contested this. It argued that it would be constitutionally untenable if the head of a chapter nine institution could rely on the mere fact of a pending investigation to shield themselves from suspension.
The high court dismissed Mkhwebane’s application on 10 June, the day after she was suspended.
In that ruling, the court accepted that the president could suspend someone investigating him, as long as it was not arbitrary.
“The president cannot exercise that power at a whim. But this was not the case here, because he could only do so once a parliament commenced proceedings to remove the public protector and, by then, credible allegations of misconduct or incompetence would already have been levied against Mkhwebane.
“Regrettably, this is precisely what we are dealing with in this matter.”
Mkhwebane responded by returning to court to challenge the suspension on similar grounds and succeeded, in a ruling that has caused political ripples and, for legal analysts, questions as to its rationale.
The judges said theirs was not to question the June ruling, where the court found that the evidence Mkhwebane presented in pursuit of an interdict did not make for an apprehension of bias.
A close reading suggests, some have noted, that the second court indeed begged to differ with the first ruling.
Be that as it may, it confined itself to what transpired after argument was heard in her application for an interdict. Two things happened — Mkhwebane received a complaint against commodities giant Glencore and another related to the theft from Ramaphosa’s Phala Phala farm.
On the first complaint, the court said, Mkhwebane had not raised the matter with Ramaphosa.
Not so with the second, where Ramaphosa was accused of breaching the ethics code and section 96 of the
Constitution by earning a private income from game sales.
On 7 June, Mkhwebane sent Ramaphosa 31 questions related to the burglary, with a 14-day deadline to reply. It is here that the court found the history of hostility between the two to be relevant.
It heard extensive argument as to the applicable standard for reasonable perception of bias. Although the court voiced “grave doubts” as to whether this should be the double reasonableness test — that for the recusal of judges — it said even on this standard there were several reasons why Ramaphosa could not be impartial when considering the suspension.
“The first is that, as pointed out by the DA in their heads of argument filed in part A, the applicant has previously been found by the constitutional court not to have investigated the president ‘with an open and inquiring mind’ and that she was ‘unduly suspicious’ of the president.”
Given her earlier findings, and the probing nature of the questions on Phala Phala, the president may well have
thought
“there she goes again”, and concluded he might be better off with anybody but her leading the investigation, the court said.
In response, Ramaphosa objected that bias had been attributed to him because of past improper conduct on her part. “The effect of this finding is that since the judgment of this court was handed down in the matter of Public Protector vs President of RSA, it creates a reasonable perception of bias on the part of the president, and thereby precludes him from exercising his constitutional power to suspend the public protector.
“This is in circumstances where (a) the findings of the constitutional court were founded on the public protector’s conduct and (b) the president exercised his power almost a year after the judgment of this court.”
He added that there was no evidence to support the finding that, faced with her questions, he thought it would be better if she were replaced. He finally submitted his replies in July after being refused a second extension by the acting public protector.
The court rejected Ramaphosa’s reasoning, included in his official statement announcing the suspension, that it would have no impact because the investigation would continue regardless.
“To suggest that such a suspension would not have any effect of delaying the course of the investigation would be a difficult proposition to convincingly sustain,” the court said.
It put a fine point on the timeline of events, and the fact that the suspension followed two days after Mkhwebane sent the list of questions and one day before the high court handed down the ruling on her application for an interdict to stop him from suspending her.
“As it were, the clock was ticking when the president signed the suspension letter,” the court said, adding that it was reasonable to see it as triggered by the investigation.
“There is no other plausible or logical explanation for the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.”
Mkhwebane’s motives were not before the court, in this instance. It did not have to consider whether, with only an uncertain court victory standing between herself and suspension, she moved to outdraw the president and expedite the early stages of
another investigation into his financial affairs.
African Transformation Movement leader Vuyo Zungula filed the complaint that underpins the probe on 3 June, three days before she put her questions to the president.
In his application, he said the court erred in looking only at what transpired over a few days in June. It should instead have considered the full sequence of events leading to the suspension, over the course of several months, from 18 March when he asked her for reasons why he should not take this step.
As to the fact that he acted a day before the court ruled on her application for an interdict, Ramaphosa reiterates that he was not yet aware when it would be handed down when he signed the letter of suspension.
“A revised draft of the letter was sent to the president for consideration on the evening of 8 June and it was finalised on the morning of 9 June, when the president signed the letter,” according to his papers.
In the end, the court’s notice to litigants and the letter of suspension all but passed each other midair, according to a report by embattled Western Cape judge president John Hlophe, compiled in response to a complaint by the Pan Africanist Congress that the first was “leaked” to external parties.
Ramaphosa and the DA both argue that the high court order of constitutional invalidity has no effect until confirmed by the apex court. Both ask that should the court disagree on this, it grants them direct access to appeal the judgment.
Mkhwebane has filed an urgent application in the high court in terms of the Superior Courts Act, arguing that she, and the office of the public protector, would suffer prejudice should it not be enforced immediately. Her reasons include the need to return to work to pursue pending investigations, including that into the Phala Phala investigation.
The application, opposed by the DA and the presidency, will be heard on Friday. In papers, counsel for the president said Mkhwebane cannot prove that she will suffer irreparable harm if she did not return to work, but Ramaphosa and the rest of the country would if she did.
“Conversely, if the relevant orders of this court are operationalised at this stage, the potential harm to the public interest and the democratic project is grave and far-reaching.”
This includes the risk that staff who are to testify in the impeachment inquiry would be intimidated.