A day after the public protector’s office withdrew the court case in which suspended public protector Busisiwe Mkhwebane sought to set aside her suspension and challenge the impeachment process against her in parliament, Mkhwebane applied to join the case in her personal capacity — and press ahead with the litigation.
In her court papers, signed on Friday, she said the withdrawal of the case by the public protector’s office was “meaningless” and it had “no business” doing so.
She also took aim at President Cyril Ramaphosa, saying there was no evidence to support his claim that he was co-operating fully with investigations into what she called “the #PhalaPhalaFarmGate scandal”.
Mkhwebane said Ramaphosa’s request to her deputy, Kholeka Gcaleka, for an extension to answer questions in the public protector’s investigation into the break-in at his Phala Phala farm was “unjustifiably sought”.
Surely he (President Ramaphosa) could and should have answered the questions, which are pressing to the public, and postponed the cattle auction. The extension and certainly the length thereof was therefore wholly undeserved
— Busisiwe Mkhwebane, suspended public protector
She had on June 7 sent Ramaphosa 31 questions after a complaint by ATM leader Vuyo Zungula. After her suspension, Gcaleka had given Ramaphosa an extension to answer them.
This showed, said Ramaphosa in his earlier court papers, that the investigation was continuing whether or not she was in office — denying the claim her suspension would benefit him by undermining the investigation.
But while the investigation may be continuing, it could not “honestly be asserted to be continuing in exactly the same way or pace it would have done if I had not been suspended”, said Mkhwebane.
“At the simplest level the workload of the office of the public protector would have been duly shared as between me and other colleagues, such as senior investigators, while the deputy public protector would carry on with her normal duties as previously delegated by me,” she said. Their “personal styles” were also not “carbon copies”, said Mkhwebane.
She said to illustrate, she could “categorically state” she would not have granted Ramaphosa the extension “in exactly the terms as requested by the president”, she said. The reason he gave for needing the extension was that he was “exceptionally busy”, said Mkhwebane. Yet on the weekend of June 18 2022 “he elected to host a private cattle auction at his Phala Phala Farm in pursuit of his private business interests”, she said.
“Surely he could and should have answered the questions, which are pressing to the public, and postponed the cattle auction. The extension and certainly the length thereof was therefore wholly undeserved,” she said.
She said this showed how the president had already benefited from her suspension.
Mkhwebane said Ramaphosa had publicly said “his main concern is his presidency of the Ankole Society and that the presidency of the country is a side occupation”, quoting a public address where he said the presidency of SA was “just a nice to have. The real good one is being the president of the Ankole Society.”
Mkhwebane also accused the president and the speaker of parliament of a “co-ordinated attack on me and my attorneys”, saying one of the intentions behind suspending her was to hamper her ability to defend her rights — either in court or in the impeachment proceedings, which began in parliament on Monday.
While the public protector’s office withdrew the case last week, it said in a statement that it would fund Mkhwebane’s challenge of her suspension and her defence during the impeachment proceedings. The costs of this litigation will therefore continue to come from the public purse.
In earlier court papers, the speaker had expressed doubt about Seanago’s authority to litigate on behalf of the public protector, as the relief would “mainly be of benefit to Adv Mkhwebane personally, rather than the office of the public protector”.
But Mkhwebane said this was “based on a complete lack of understanding of the applicable provisions of the constitution, the Public Protector Act and even the PFMA [Public Finance Management Act]”. She said her attorneys had a mandate to act in Part A of the litigation and the public protector at no stage terminated their mandate.
But, she said, there was “general confusion as between the public protector or the public protector of SA on the one hand and PPSA as an institution on the other”, she said.
This was evident from correspondence that resulted in the withdrawal of the case. “PPSA therefore has no business to write to the registrar or file a notice purporting to ‘withdraw’ from proceedings in which it is not a party.
“The notice of withdrawal is therefore a meaningless brutum fulmen (an act without effect) necessitating an undue waste of time, resources and emotion,” said Mkhwebane.
The case was originally scheduled to be heard on July 25 and 26.
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