Public protector Busisiwe Mkhwebane’s suspension was premature, advocate Dali Mpofu said on Monday at the parliament’s Section 194 inquiry into Mkhwebane’s fitness to hold office.
Mpofu, who represents Mkhwebane, told the inquiry that the suspension was biased and added that it was granted by someone “who is presently being investigated by the public protector”.
Mpofu argued that the suspension violates the constitution even though the Constitutional Court found that the laws overseeing the impeachment inquiry processes are lawful.
According to Mpofu, parliament has a constitutional duty to protect Mkhwebane, saying she should only be removed by two-thirds rather than a simple majority, and suggested that Mkhwebane’s impeachment should be voted on by secret ballot.
According to Nazreen Bawa who is leading the evidence into Mkhwebane’s fitness to hold office, Mkhwebane is under scrutiny for misconduct in her SA Reserve Bank investigation and her Financial Services Board report, failing to assist farmers affected by the Gupta-linked Estina Dairy scam, and harassing and intimidating her staff.
In June, Mkhwebane was suspended President Cyril Ramaphosa.
The Presidency declared at the time that Section 194(3) (a) of the constitution provides that the president may suspend Mkhwebane or “any member of the Chapter 9 institution” at any time following the commencement of the National Assembly’s proceedings for their removal.
Judge Nathan Erasmus, who delivered the ruling dismissing Mkhwebane’s application, said the court believed that a “strong signal needs to be sent” that the Constitutional Court’s decision needed to be respected and cannot be circumvented by rescission applications.
Mkhwebane approached the court in May in her bid to block the proceedings and stop Ramaphosa from suspending her. She argued that the president was conflicted and should not be allowed to suspend her.
This followed a number of complaints against Ramaphosa that Mkhwebane was investigating. Mkhwebane raised concerns that Ramaphosa knew the court would dismiss her bid to block the inquiry.
Mkhwebane, who said she would challenge Ramaphosa’s decision to suspend her a day before the high court ruled on the matter, said in a statement at the time: “Be that as it may, on 10 June 2022 the high court indeed subsequently confirmed that president Ramaphosa may do what he did on the previous day. In that sense, the judgment had been rendered academic by the conduct of the president.
“It seems clear that the judgment is largely and focused on the technicality that the application is for an interim interdict and the special requirements of such interim interdicts rather than the merits of whether 1) this particular president is personally legally entitled to suspend a person who is investigating him for serious and impeachable offences; and 2) whether the provisions of the empowering section 194[3] [a] of the constitution had been triggered [i.e. whether the removal proceedings had started] by 17 March 2022 or even yesterday when the suspension occurred.
“This is despite the glaring errors in today’s [Friday] judgment which dismisses an application to strike out which was specifically not pursued, but grants personal costs orders which the Speaker [of the National Assembly] and the president did not seek and only the DA, which is the complaint in the impeachment process, asked for based on its obvious political agenda. In due course, these material errors and deficiencies will be separately attended to.
“Therefore, it seems appropriate to approach the judge president to urgently set down part B of the application so that those issues can be decided outside of the technical context of the requirements of interdicts and before the commencement of the purported impeachment proceedings.”
Mkhwebane added: “I will also challenge suspicious and legally questionable suspension decision made yesterday, more particularly in so far as it was done in apparent contempt of court, in breach of undertakings made to me by the president via his lawyers, and by a president who is now even and more conflicted given the more recent Glencore and Phala Phala [farm robbery] complaints/investigations.
“Accountability, the rule of law fairness, and equality before the law lie at the heart of the issues raised in this matter.”
Also read: Another blow for Mkhwebane as court dismisses last bid
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