Suspended public protector Busisiwe Mkhwebane on Tuesday fired back at President Cyril Ramaphosa’s instruction not dare return to work because she is still under suspension.
“I strongly disagree with your strained, contrived, and plainly incorrect interpretation of the constitution, as well as the clear words contained in the Presidential Minute,” she said.
“While it is indeed so that your letter of suspension seems to contradict the clear wording of the constitutionally ordained Presidential Minute, it ought to be obvious that in the case of any conflict between the two documents, the Presidential Minute must prevail.”
She said Ramaphosa conflated the proceedings of the Committee for Section 194 Enquiry that investigated her fitness to hold office with the entire process to remove a Chapter 9 head from office as outlined in section 194 of the constitution.
“The words ‘proceedings’ or ‘inquiry’ in both section 194[3] and the Presidential Minute do not include other parts of the process, such as the independent panel stage or the tabling of the motion in the National Assembly,” she said.
She said the president failed to address the committee’s unequivocal statements that the proceedings were concluded following its adoption of a report recommending that she be removed from office for misconduct.
Similarly, said Mkhwebane, the office of the public protector also withdrew legal services support for her because the proceedings were already finalised by the end of August.
She said: “According to the Endumeni case on which you place reliance, all legal documents
must be interpreted by taking into account the triad of the text, context, and purpose.”
In the present case, the text was clear, she said, adding that the context and purpose are defined in section 194 of the constitution, read with section 101(1) thereof.
“In the circumstances, there is nothing in your letter, which is based on the wrong principles of law and seeks to run away from the clear words deliberately employed by you in the Presidential Minute, that can alter the fact that the period of suspension has already expired.
“I will therefore return to the office as previously indicated.”
Ramaphosa’s disputed Presidential Minute reads as follows: “I hereby, in terms of section 194[3][a] of the Constitution of the Republic of South Africa, 1996, suspend advocate Busisiwe Mkhwebane from the office of the public protector pending the finalization of the proceedings/inquiry initiated by the committee of the National Assembly established in terms of section 194 of the constitution.”
It also noted that Mkhwebane would continue to receive salary, allowances, and other benefits that are attached to the position of public protector during her suspension.
This was on June 9 2022.
On Tuesday, Mkhwebane did pitch at the Hillcrest Office Park, but it was only to address the media since both Ramaphosa and her deputy, Kholeka Gcaleka, had already told her that she was unwelcome.
Ramaphosa said in a letter on Monday that the constitutional processes pertaining to Mkhwebane’s suspension or potential removal from office prevent her from reporting for duty.
Gcaleka added her voice and said Mkhwebane was not an employee of the public protector’s office.
Speaking to the media outside the office gates, Mkhwebane said it was baffling that she was deemed not to be an employee when she still received full salary.
She insisted that she would remain the executive authority of the office until her term expired in October.
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