President Cyril Ramaphosa will not voluntarily testify before Busisiwe Mkhwebane’s impeachment process, his lawyer has said in a letter to the suspended public protector. And it would be “extraordinary” and unlawful if she were to try to compel him to do so.
“We are compelled to point out that as a matter of principle, it is extraordinary for a head of state to be compelled to give oral evidence in these circumstances. The Constitutional Court has pronounced that the president should not be ordered to give evidence, unless the interests of justice clearly demand this be done,” said the letter from state attorney Mark Owen.
Owen was on Monday responding to Mkhwebane’s attorneys’ request that Ramaphosa testify under oath at her impeachment inquiry. Seanago Attorneys’ letter, sent on July 19, said if Ramaphosa was unwilling to avail himself voluntarily, then “the necessary steps will swiftly be taken” to bring him before the committee to testify via subpoena.
Seanago’s letter said two of the charges in the impeachment motion faced by Mkhwebane, related specifically to the CR17 campaign — “named after you and ... formed to ensure your successful election”.
In the litigation over the public protector’s CR17 report, “the full court (per Mlambo JP, Matojane J and Keightley J) plus the 8 Constitutional Court judges in agreement with the submissions of the president, levelled some of the most scathing accusations against the public protector of SA,” said the letter.
No lawful or constitutionally appropriate purpose would be served by the president giving further evidence in respect of such findings.
— Mark Owen, state attorney
These included that she did not have authority to investigate the CR17 campaign; that an incorrect answer given in parliament by Ramaphosa was “by no stretch of the law, logic or even ethics” wilful or deliberate misleading of parliament; that she did not act with an open mind; that her findings were reckless; and that she failed to show appreciation for an elementary grasp of the issue she was dealing with, the letter said. Seanago said all these observations emanated from the president in the course of litigation.
The letter also claimed — denied as untrue by Owen — that the president had argued Mkhwebane should not be represented by lawyers during the impeachment process.
Owen said while Mkhwebane sought to characterise the CR17 issue as one arising from “evidence that served before the courts”, when looked at properly, Mkhwebane’s complaint “in fact relates to the findings made by the courts in respect of your clients”.
Mkhwebane was therefore operating under the premise that she “engages in a process of relitigating and/or reconsidering the findings made by the courts.
“With respect, your client’s views in this regard are misplaced and legally unsustainable,” said Owen.
“Consequently, no lawful or constitutionally appropriate purpose would be served by the president giving further evidence in respect of such findings.”
Any attempt to compel Ramaphosa would be unlawful and in breach of the separation of powers, he said.
He added it was simply untrue that the president had ever argued the public protector should not have legal representation.
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