Busisiwe Mkhwebane fails to reverse her suspension as ConCourt rules in favour of Ramaphosa

Suspended Public Protector Busisiwe Mkhwebane’s latest bid to return to office has failed, with her term set to end in less than four months.

The Constitutional Court (ConCourt) dismissed Mkhwebane’s application to reverse her suspension on Thursday, eight months after the full bench heard arguments from all parties involved in the matter.

Mkhwebane was suspended by President Cyril Ramaphosa in June last year, a day after she announced that her office would investigate the president’s conduct regarding the Phala Phala farm scandal.

‘Rational reason’
In a unanimous judgment, Deputy Chief Justice Mandisa Maya said the apex court found that there was a rational reason for the precautionary suspension of Mkhwebane.

Maya said the court was of the view that the Mkhwebane’s suspension would have allowed her to focus on her defence in the Section 194 Inquiry into her fitness to hold office.

“It cannot be said that the president’s decision to suspend her was irrational even if there were other rational causes open to him,” Maya said in delivering the judgment.

The Deputy Chief Justice said among other factors, the court took into account the findings of an independent panel led by Justice Bess Nkabinde, which found that there was prima facie evidence of incompetence on the Public Protector’s part based on a number of repeated instances.

She highlighted that the full bench also considered the various court cases in which Mkhwebane’s capacity to hold office was under scrutiny.

“This court itself has made gravely adverse credibility findings against her.”

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‘Mkhwebane remains on full pay’

The court also rejected Mkhwebane’s argument that her suspension was triggered by the Phala Phala investigation and that there was a conflict of interest on the president’s part.

“On the facts of this matter, this court holds the mere fact that the Public Protector investigating the president could not expose him to a risk of conflict between his official responsibilities and private interests.

“This is so because the power to suspend the Public Protector is not a power that the president can exercise without safeguards… it is a tightly constrained power which cannot be exercised on a whim or for flimsy reasons. The president can only exercise this power after a committee of the National Assembly commences proceedings for her removal,” Maya continued.

The Deputy Chief Justice further said it was not up to the president to determine the duration of Mkhwebane’s suspension nor decide whether the allegations against her were credible.

“That depends on the National Assembly and it’s processes,” said Maya.

The president “stood to gain nothing” from suspending Mkhwebane as the move did not hamper her office’s investigation into Phala Phala.

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“The Acting Public Protector had to and did continue with the investigation. Moreover, the president has no power to choose who will replace the Public Protector or to influence them.”

Maya added that Ramaphosa did not suspend Mkhwebane to prejudice her.

“The suspension is only a precautionary one and does no harm to her as she remains on full pay, has time to properly attend to her defence in the Section 194 Inquiry and suffers no reputational harm as she is already subjected to a public inquiry in which the allegations leading to her suspension have been ventilated.”

The court dismissed Mkhwebane’s application to return to office as well as her application to have her impeachment declared unconstitutional.

Costs

Mkhwebane was ordered to pay a part of the costs in her personal capacity.

“Regarding costs, this court holds the view that the Public Protector has not conducted herself in a manner that would justify mounting here with costs in respect of the appeals and cross-appeals.

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“The nature of this proceedings warrants the application of the Biowatch principle and the court has decided not to award costs.

“In relation to the costs of the section 18 application leave to appeal, however, the Public Protector must pay the costs in her personal capacity as there was no indication that the section 18 application was authorised by the office of the Public Protector, which had undertaken to settle her legal costs in respect of the appeals,” the Deputy Chief Justice said.

As expected the Concourt did not ‘disappoint’.
RIP Hon. Tina Joemat-Pettersson #ByAnyMeansNecessary by Malcom X pic.twitter.com/LsFUsm21e5

— Adv Busisiwe Mkhwebane (@AdvBMkhwebane) July 13, 2023