President acted without bias when he suspended public protector, DA argues

President Cyril Ramaphosa acted without bias when he suspended public protector Busisiwe Mkhwebane, counsel for the DA argued in the Constitutional Court on Thursday.

The apex court is hearing three consolidated applications emanating from the judgment by the Western Cape High Court declaring the president's decision to suspend her invalid.

The first two applications are for leave to appeal brought by the DA and the president against the high court's order.

The third is an urgent application for leave to appeal brought by Mkhwebane against an October high court ruling that rejected her bid to immediately return to work when a full bench said the ConCourt was yet to rule on the September order that set aside her suspension. The judges said this order had no force until it was confirmed by the ConCourt.

In the ConCourt, the DA has submitted that Mkhwebane's suspension is necessary in the circumstances to protect the integrity of the office of the public protector and the effectiveness of the section 194 process into her fitness to hold office which is under way.

Advocate Steven Budlender SC, for the DA, told the court Ramaphosa’s decision to suspend Mkhwebane was appropriate, the president followed the proper procedure in doing so and there was no bias on the side of the president.

“On March 18, President Ramaphosa wrote to the public protector and asked her to give reasons why she should not be suspended. No-one knew about Phala Phala. She started making requests to slow the process. The president started giving undertakings. We know the president bent backwards to accommodate Mkhwebane,” Budlender said.

He detailed the extension requests Mkhwebane made, which the president granted at all times.

“Up until that point there have been delays and at that stage no-one knew about Phala Phala. On May 26, the public protector made representations. The president did what any reasonable person would have done. He took two weeks to apply his mind. That timeline shows there is no bias on the side of the president. He tried to assist Mkhwebane.”

If the president rushed the decision, Mkhwebane would have accused him of not applying his mind. 

Budlender said there was a need to preserve the public protector's office and its credibility. 

“Should the court find the president was biased in his decision to suspend the public protector, it would be catastrophic for the Phala Phala investigation if she returns to the office,” he said. 

Justice Rammaka Mathopo asked Budlender whether the president hurried Mkhwebane's suspension after receiving the questions from her regarding Phala Phala. Mathopo said the issue needed to be addressed objectively. 

Budlender said it was important to consider the facts around Mkhwebane's suspension, which was looming before the Phala Phala saga. It would be incorrect to say if the president is investigated, there is automatic bias. “You need something more,” he said.  

The hearing continues. 

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