Mkhwebane plans to challenge high court judgment, suspension

Suspended public protector Busisiwe Mkhwebane is gearing up to challenge the Western Cape High Court’s decision to dismiss her last rescission application to halt parliamentary proceedings into her fitness to hold office.

Mkhwebane said she would also challenge President Cyril Ramaphosa’s decision to suspend her a day before the high court ruled on the matter on Friday, raising concerns that the president might have known that the court would dismiss her bid to block the inquiry.

In a statement on Friday, Mkhwebane said Ramaphosa pre-empted the court’s judgment which was to decide on the “legal entitlement of president Ramaphosa to suspend [her]”.

“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 [Thursday]. In that sense, the judgment had been rendered academic by the conduct of the president,” said Mkhwebane.

“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 complaints/investigations.

“Accountability, the rule of law fairness, and equality before the law lie at the heart of the issues raised in this matter.”

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.

However, Ramaphosa stated when suspending Mkhwebane that he had given her a fair chance to defend herself. But many people wonder why the president suspended the public protector on Thursday, after her office announced that it is investigations the allegations levelled against him amid the Glencore and Phala Phala farm drama.

The African Transformation Movement said Ramaphosa’s action showed he was panicking.

ATM spokesperson Sibusiso Mncwabe said on Thursday: “Our leader Vuyo Zungula wrote to the public protector and we received her letter that the matter is getting attention and being investigated. Now we’re receiving the news that she has been suspended.

“To us, it says the president is panicking because there’s nothing so far that necessitates the president to suspend the public protector.”

Also read: Another blow for Mkhwebane as court dismisses last bid

Ramaphosa suspends Public Protector Mkhwebane with immediate effect

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