Mkhwebane ‘wants to rule on Cyril’
DA suspects suspended public protector wants job back so she can find against president
● There was “real reason to suspect” that suspended public protector Busisiwe Mkhwebane wished to return to office “solely so she can issue a report finding against the president in the Phala Phala complaint”, said the DA in court papers at the Constitutional Court on Friday.
The DA was arguing that the court should not allow Mkhwebane to immediately return to work — whatever it decides about the lawfulness of her suspension by President Cyril Ramaphosa.
The opposition party, the president and Mkhwebane all filed court papers at the Constitutional Court on Friday afternoon as the apex court prepares to hear argument on Mkhwebane’s suspension on November 24.
With the high court this week emphatically rejecting an application for leave to appeal in Mkhwebane’s quest to immediately return to work, her options have narrowed: the Constitutional Court is where her best chances lie.
The DA’s and the president’s argument focused on the lawfulness of her suspension. They are each appealing against the September judgment of the Western Cape High Court that set aside her suspension because Ramaphosa “could not bring an unbiased mind to bear as he was conflicted”
— due to the ongoing investigation by the public protector’s office arising out of the burglary at the president’s Phala Phala farm.
Mkhwebane’s court papers focused on her “cross-appeal” grounds — she will defend the main outcome of the high court decision but is appealing against other parts of it, where the court rejected her arguments. She also focused on what should happen while the litigation continues. She wants to go back to work immediately. Her counsel, Dali Mpofu SC, suggested that by keeping her suspended, Mkhwebane was “the victim of the most egregious and intentional forms of state power ever witnessed”.
But the DA argued that, even if the Constitutional Court agreed that Ramaphosa was conflicted, it should make an order that would allow someone else — the deputy president — to retake the decision. The DA said even Mkhwebane had never challenged Ramaphosa’s reasons for suspending her; she had said only he was the wrong person to do it and that he was doing it too early.
The DA was clear its position on Mkhwebane issuing a Phala Phala report was not because the party was batting for the president, but because a report issued by her would be suspect. “If she is allowed to return to office, issues a report in the Phala Phala matter, and is then suspended by the Deputy President, it would cast a serious shadow over the legitimacy of that report,” said the DA’s counsel, Steven Budlender SC.
Recounting the original reasons for Mkhwebane’s suspension, Budlender said: “It is difficult to think of a clearer case where suspension is not only justifiable, but necessary to protect the integrity of the office.”
In the president’s submissions, his counsel, Geoff Budlender SC and Karrisha Pillay SC, said the high court was wrong to find the Phala Phala investigation created a conflict of interest or bias on the part of the president. While Mkhwebane had suggested her suspension had delayed or “destabilised” the Phala Phala investigation, there was simply no evidence to back this up, they said.
They said the evidence went the other way: acting public protector Kholeka Gcaleka had said in an affidavit that since Mkhwebane had been suspended, the public protector’s investigation team had been expanded, the witnesses originally identified by Mkhwebane had been interviewed and
evidence obtained, submissions had been received and more evidence and critical information from a further 11 witnesses was being elicited.
“The acting public protector is diligently pursuing the investigation. There is not a scrap of evidence to suggest, let alone show, that her manner of doing so will benefit the private interests of the president,” said the president’s counsel.
They also argued the suspension had been long in the making, with Ramaphosa asking Mkhwebane why she should not be suspended in March. This was long before her Phala Phala probe. On the letter itself: “It is clear from the president’s evidence that the suspension letter had been prepared over a number of days, and that a revised draft ... was sent to him for consideration on the evening of 8 June 2022. This contradicts the court’s finding that the president’s decision was retaliatory and/or hurried,” they said.
Mpofu said if the apex court agrees that the high court was wrong to disallow Mkhwebane’s application, it should send it back there to be heard again — “hopefully with an injunction that it must be afforded a rehearing on an extremely expedited basis”.
The parties will all be able to respond to each other once more in written argument before the matter is heard on November 24.