I can still suspend public protector, says Ramaphosa
● A mere investigation by the public protector into President Cyril Ramaphosa cannot prevent him from suspending her, Ramaphosa said in court papers this week.
He was responding to Busisiwe Mkhwebane’s court case to interdict what she says is her imminent suspension on the basis that he is conflicted because of “multiple” investigations by her office.
But, says Ramaphosa, the public protector has extensive powers of investigation. She can even of her own accord initiate an investigation. The constitution “could never have contemplated that the very person” it empowers him to suspend may restrain that power “by commencing an investigation against me”.
The language of the DA’s affidavit is less restrained, calling Mkhwebane’s position “absurd”.
“It would allow any person to subvert the power of the president to suspend the public protector by lodging a complaint ... no matter how meritless that complaint was,” says DA leader John Steenhuisen.
“She could herself prevent the president from taking that decision by initiating a baseless investigation.”
It has been almost three years since the Constitutional Court handed down a judgment — in July 2019 — that confirmed a personal and punitive costs order against Mkhwebane, skewering her for being dishonest and acting in bad faith. A motion for her impeachment followed in December. But it was only last month, on March 17, that there was a real possibility of suspension, when Ramaphosa wrote to Mkhwebane, asking her for submissions as to why he should not suspend her.
Litigation largely accounts for the delay. But in a unanimous judgment in February, the Constitutional Court cleared the way for the impeachment process to go ahead. Mkhwebane then applied to the Constitutional Court to rescind its own judgment.
And she has now, once again, approached the Western Cape High Court for an interim interdict to prevent the impeachment process from going ahead in parliament while the matter is “sub judice” before the Constitutional Court. In the same case, she has challenged the president’s power to suspend her.
When the impeachment process first got under way in mid 2020, Ramaphosa acknowledged he may have a conflict of interest due to the separate, pending litigation between him and the public protector over her CR17 report. This report dealt with the donations to the campaign that resulted in him being elected ANC president at the party’s Nasrec conference in December 2017.
The CR17 report and investigation were wholly set aside by the Constitutional Court. An attempt by Mkhwebane to rescind that judgment was tersely rejected by the Constitutional Court last month.
However, Ramaphosa said in 2020 that while that litigation was pending, he would not suspend Mkhwebane and would, if necessary, delegate the decision to another cabinet member.
He would do this to “exclude the possibility or the perception of bias affecting the outcome of any decision I take” to protect the integrity and legitimacy of his office and hers, and curtail unnecessary litigation.
In her current court papers, Mkhwebane implies that the same principles apply because she is investigating him. Quoting his affidavits, Mkhwebane says: “Presumably, the president continues to seek to protect the integrity of the office of the president and the office of the public protector and to curtail unnecessary litigation. If not, he owes the court a big explanation.”
But Ramaphosa says Mkhwebane appears to have misunderstood what he had said in his earlier affidavits. The reason for his undertaking was to avoid any perception that by suspending her he would be seeking to bring the litigation — then ongoing — to an end. But now the litigation is over, there is “no conceivable basis” to assert that he is conflicted over the pending litigation.
Mkhwebane says there is an element of that dispute still ongoing: the EFF is still litigating over access to the CR17 bank statements. But Ramaphosa says this is a fight between the EFF and the CR17 campaign and not between the public protector and the president. Both he and Mkhwebane are respondents in that case.
On the three ongoing investigations listed by Mkhwebane, Ramaphosa says the public protector has simply not explained in her court papers how he is conflicted.
Mkhwebane is still to reply to these affidavits. The case is expected to heard on April 25 and 26. And, in the meantime, Ramaphosa has undertaken not to take a decision on suspension.