ConCourt vindicates Ramaphosa over suspension of Mkhwebane

President Cyril Ramaphosa “stood to gain nothing” by suspending public protector Busisiwe Mkhwebane, the Constitutional Court said on Thursday.

In a unanimous judgment, penned by deputy chief justice Mandisa Maya, the highest court found there was no conflict between Ramaphosa’s official responsibilities and his private interests when he suspended Mkhwebane. Nor had he acted irrationally in doing so, said Maya when she handed down the judgment. 

The Constitutional Court set aside the Western Cape High Court’s judgment that had found Mkhwebane’s suspension unconstitutional and invalid. 

Handing down judgment, Maya said there was a rational reason for Mkhwebane’s suspension, “which benefited her and her office”.

The suspension allowed Mkhwebane to centre her attention on her defence in the impeachment proceedings in parliament and safeguarded the integrity of her office, said Maya.

She said in reaching this conclusion, she had considered the independent panel that looked into whether there was an impeachment case to answer for Mkhwebane.

The panel, chaired by former Constitutional Court justice Bess Nkabinde, found there was prima facie evidence of incompetence and misconduct on Mkhwebane’s part.

Maya had also considered the “many judicial assertions made where the public protector’s capacity to hold office ... was brought under scrutiny and found wanting”.

“This court itself has made gravely adverse credibility findings against her,” she said.

In these circumstances, it would have caused grave public concern if Mkhwebane were to remain in office while she was being investigated, said Maya.

On the question of whether the suspension amounted to a conflict of interest — because she was investigating the Phala Phala scandal and other ongoing investigations involving Ramaphosa — Maya said the mere fact the public protector was investigating the president could not expose him to a risk of a conflict of interest.

“This is so because the power to suspend the public protector is not a power that is exercised without safeguards. It is a tightly constrained power,” she said. 

The president could only suspend the public protector after a committee of parliament had begun proceedings for her removal.

“The president neither determines the duration of the suspension, nor decides whether there are credible allegations against the public protector. That depends on the National Assembly and its processes,” she said.

The president’s role was confined to imposing a precautionary suspension to protect the office of the public protector.

Her suspension achieved nothing for Ramaphosa’s benefit because “it did not delay, let alone end, the investigation against him”, she said.

The acting public protector had continued the investigation diligently, according to an “undisputed affidavit” from acting public protector Kholeka Gcaleka. 

The evidence also did not support the high court’s conclusion that the suspension was “hurried” or “retaliatory”, she said. Instead the evidence showed that Ramaphosa had given Mkhwebane four extensions to make representations on why he should not suspend her.  

The emergence of the Phala Phala allegations therefore could not taint a process that was “neither hurried nor irrational”, Maya said.

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