An “extraordinary twist of fate” — and not retaliation — was behind the timing of President Cyril Ramaphosa’s suspension of public protector Busisiwe Mkhwebane, just two days after she sent him 31 questions over his Phala Phala farm incident.
This was the submission of Ramaphosa’s advocate, Geoff Budlender, in argument before the Constitutional Court on Thursday, conceding though that “the optics are awkward”.
The president and the DA made strange bedfellows in their bid before the apex court to overturn a ruling by three Western Cape high court judges, who found the suspension decision “tainted by bias of a disqualifying kind and perhaps an improper motive”.
It ordered that she be reinstated immediately.
However, the DA claimed that because the decision involved the president, the law dictated that it be ratified by the ConCourt.
In the face of opposition, she went to the high court but failed in her attempt to be reinstated.
But on Thursday Mkhwebane’s advocate, Dali Mpofu, said he had many strings to his litigation bow.
Apart from opposing the appeal, his client also denied that the Western Cape decision needed ratification. She had launched an application for her reinstatement pending the outcome of the litigation and had lodged a counter-appeal against rulings made against her by the Western Cape court.
These include the court’s finding that the president had not instituted suspension proceedings ahead of the National Assembly’s section 194 inquiry into her fitness to hold office and that the suspension, on those grounds, was lawful.
Mkhwebane claims the suspension process could only begin when the inquiry actually began in July and not in March, when he first wrote to her asking for reasons why she should not be suspended.
Mpofu said if the court agreed with this “we can all go home”.
She is also seeking to stop the inquiry, claiming ongoing litigation means issues under the spotlight there are “sub judice”.
Mpofu described the strategy as a “domino effect”, saying Mkhwebane did not care on which point she won, she just wanted to go back to work.
Budlender said the common cause facts were that the president had first written to Mkhwebane about her possible suspension in March this year.
He granted her four extensions and gave her undertakings before setting the final May 26 deadline for her representations.
On June 7, after former correctional services boss Arthur Fraser laid criminal charges against the president in connection with the Phala Phala matter, she sent him the questions.
Budlender said on June 9, Ramaphosa informed her she was suspended.
“There was no hurried decision,” he said.
“The suspension produced no personal benefit for the president. The investigation into Phala Phala continued ... he answered the questions. It is not widely known that the president intended to attach his answers to his answering affidavit. He didn’t do so because the deputy public protector asked him not to. He remains willing to make his answers public.”
He grants extension after extension, but immediately after Phala Phala happens, he acts at the speed of light, pouncing on the public protector. He must have known there would, at best, be a reasonable apprehension of bias and a risk of conflict of interest.
— Advocate Dali Mpofu, acting on behalf of the public protector
He said the acting public protector had confirmed there had been no delays in the investigation, the investigating team had been expanded, witnesses interviewed, documents analysed, and another 11 witnesses had been identified.
Budlender said it was clear the suspension process started “long before” the Phala Phala questions were sent to Ramaphosa, and there was no validity to the finding that the suspension was retaliatory, that he had a conflict of interest or was biased.
“The difficulty is the coincidence in the dates. It was an extraordinary twist of fate.” He said any “reasonable person”, knowing the true facts, would not accept that the president was biased.
“He was faced with a situation where an eminent panel appointed by National Assembly had made devastating findings against Adv Mkhwebane — it is a shattering account of sustained misconduct and incompetence.
“He had the duty to protect the integrity of the office. That is his constitutional obligation. That cannot be disputed. The case for suspension was truly overwhelming.”
Steven Budlender Jr, for the DA, said Ramaphosa had actually “bent over backwards” in giving Mkhwebane extensions to give her reasons against her suspension.
Mkhwebane had not challenged the merits of the suspension but only who had suspended her.
He urged the court, should the appeal fail, not to reinstate her but to suspend any order to allow another person, possibly the deputy president, to reconsider the issue.
“To reinstate her would be catastrophic,” he said.
Mpofu argued the appeal should fail.
He said the president had “cherry-picked” who would investigate him, the equivalent of “forum-shopping for judges”.
“He grants extension after extension, but immediately after Phala Phala happens, he acts at the speed of light, pouncing on the public protector,” he said.
“He must have known there would, at best, be a reasonable apprehension of bias and a risk of conflict of interest.”
He said the appeal was “contrived by the DA after the fact and as a stratagem to re-suspend the public protector”.
He said it was “clever lawyering” after Mkhwebane won her case and that one of the DA’s lawyers had “quite candidly admitted on the stand that we had to do something to make sure she does not go back to work”.
Adv Andrew Breitenbach, for the speaker and chair of the 194 committee, opposed Mkhwebane’s bid to stop the inquiry.
“The committee has not and will not deliberate on litigation matters. The proceedings are entirely different.”
He referred to an affidavit submitted last week by UDM leader Bantu Holomisa in support of Mkhwebane’s submission that the sub judice rule precluded the parliamentary committee from hearing evidence before the ConCourt has ruled on the applications before it.
“We ask that it not be admitted. It amounts to an urgent application for direct access for the granting of an interim interdict which will operate from today until its judgment on the consolidated appeals,” he said, arguing it was not properly before the court.
Holomisa’s laconic description in his affidavit of it being “rather late” was disrespectful to the court and the parties, he said.
Judgment was reserved.
The parliamentary inquiry is expected to resume next week.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.