The court said the clock was ticking when Ramaphosa signed the suspension letter a day later. Mkhwebane’s case was that this would give rise to reasonable apprehension of bias on the part of the president, which disqualified him from personally exercising the suspension powers.
“In our view, the hurried nature of the suspension of [Mkhwebane] in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter, leads this court to an ineluctable conclusion that the suspension may have been retaliatory and hence, unlawful.”
The court said it was tainted by bias of a disqualifying kind and, perhaps, an improper motive.
“In our view, the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant.”
The court said these considerations did not detract from the suspension being long in the making.
“However, at the time the suspension was finalised, the president was dealing with an investigation by [Mkhwebane], the substance of the allegations of which he could not discuss as he had done with the other investigations, and this, in our view, is the critical time to assess whether it was still tenable for the president to exercise the suspension powers,” the court said.
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High court sets aside Mkhwebane's suspension by Ramaphosa
Image: Freddy Mavunda
The full bench of the Western Cape High Court on Friday declared invalid President Cyril Ramaphosa's suspension of public protector Busisiwe Mkhwebane, effective immediately.
Mkhwebane brought an application before court after being suspended in June.
On June 8, she announced her decision to investigate the Phala Phala incident as she was enjoined in law to do.
On June 9 Ramaphosa suspended her and the deputy public protector took over her duties.
The next day the Western Cape High Court refused interim relief sought by Mkhwebane in Part A of her application to halt impeachment proceedings against her in parliament and prevent her suspension.
In its judgment, the full bench said Ramaphosa received a letter from Mkhwebane about the Phala Phala investigation which required him to respond within 14 days from June 7.
WATCH | Public protector’s impeachment inquiry continues
The court said the clock was ticking when Ramaphosa signed the suspension letter a day later. Mkhwebane’s case was that this would give rise to reasonable apprehension of bias on the part of the president, which disqualified him from personally exercising the suspension powers.
“In our view, the hurried nature of the suspension of [Mkhwebane] in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter, leads this court to an ineluctable conclusion that the suspension may have been retaliatory and hence, unlawful.”
The court said it was tainted by bias of a disqualifying kind and, perhaps, an improper motive.
“In our view, the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant.”
The court said these considerations did not detract from the suspension being long in the making.
“However, at the time the suspension was finalised, the president was dealing with an investigation by [Mkhwebane], the substance of the allegations of which he could not discuss as he had done with the other investigations, and this, in our view, is the critical time to assess whether it was still tenable for the president to exercise the suspension powers,” the court said.
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