President Cyril Ramaphosa has repeated his undertaking that, if he is still mid-court battle with the public protector and is called on to suspend or remove her, he would delegate that job to another member of cabinet. But once the litigation is over, the potential conflict of interest would no longer be there, he said in court papers filed last week.
The president was answering public protector Busisiwe Mkhwebane’s court application to set aside as unconstitutional the rules that have been adopted by parliament for the impeachment of the heads of Chapter 9 institutions.
Mkhwebane already went to court – in Part A – to try to interdict the process that was triggered against her but failed. She is still trying to appeal against the Part A order. Her application for leave to appeal will be heard later this month. In the meantime, Part B – about the constitutionality of the rules – is going ahead.
When the case was first brought, Ramaphosa said he accepted there may potentially be a perceived conflict of interest if he were to suspend Mkhwebane – given that he is now litigating against her over her Bosasa report. The report found Ramaphosa had misled parliament about a donation from Bosasa’s Gavin Watson to his #CR17 campaign for the ANC’s presidency. The report also revealed millions of rand had been received in donations. The Bosasa case will be heard by the Constitutional Court on November 26.
Mkhwebane has said the process of adopting the rules has been tainted by bias against her – particularly from the DA, which brought the motion for her impeachment, from MPs who had spoken out about her, from speaker Thandi Modise and from those litigating against her.
There is no basis for the public protector to allege bias.
— President Cyril Ramaphosa
In her court papers Mkhwebane said she did not accept that the potential conflict would only last for as long as there was a judgment pending. “The potential for vengeance does not necessarily evaporate or expire simply because a judgment has been passed and irrespective of the surrounding circumstances,” said Mkhwebane.
She added the participation of Ramaphosa, Modise and the DA “irretrievably taints the entire process with actual bias and/or a reasonable apprehension thereof, as the case may be”.
But Ramaphosa denied these allegations. He said there was an important difference between pending and concluded litigation: “With pending litigation, one could potentially influence its outcome by removing the individual that is driving the litigation and thereby bringing an end to the litigation. There is no such possibility with concluded litigation.”
Ramaphosa also said Mkhwebane’s allegation that he was biased could not be a basis to set aside the impeachment rules or any impeachment process against her – because he had not been involved in it at all.
Under the constitution, the president’s only involvement came with the exercise of the power to suspend or remove the public protector. “I have not been approached by the National Assembly to suspend the present incumbent of the public protector’s office,” said Ramaphosa.
“There is no basis for the public protector to allege bias (actual or a reasonable apprehension) based on my ‘continued participation’ in the process. I invite the public protector to clarify in reply the factual basis for the statement, alternatively to withdraw the allegation in so far as it relates to me,” said Ramaphosa.
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