Mkhwebane’s suspension declared ‘invalid’

The Western Cape High Court has declared President Cyril Ramaphosa’s suspension of public protector Busisiwe Mkhwebane “invalid”, the section 194 committee heard on Friday.

However, according to section s172(2) of the constitution, the order has no weight unless confirmed by the Constitutional Court.

This is a big win for the embattled public protector, who is currently facing an impeachment inquiry into her fitness to hold office.

At the start of the inquiry in July, Mkhwebane’s legal counsel advocate Dali Mpofu, argued that the suspension was premature. He told the committee that the suspension was biased and added that it was granted by someone “who is presently being investigated by the public protector”.

Mpofu also 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, he said 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.

Ramaphosa suspended Mkhwebane in June.

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.

Ramaphosa suspended Mkhwebane hours before her last rescission application was dismissed.

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 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.

She said Ramaphosa pre-empted the court’s judgment that was to decide on the legal entitlement of the president to suspend her.

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.”

In August, the Constitutional Court dismissed Mkhwebane’s rescission application to overturn its finding that the impeachment inquiry against her is lawful.

The court found that her application “constitutes an abuse of the process of court” and ordered Mkhwebane to personally foot the legal costs incurred in the Reserve Bank case.

Reads the judgment: “The Constitutional Court has considered the application for rescission. It has concluded that the application should be dismissed as no case has been made out for rescission. The applicant ought to pay costs in her personal capacity, as this application constitutes an abuse of the process of court.”

It has also been revealed during the inquiry that the suspended public protector has spent over R146-million in legal battles and is facing criticism that certain amounts spent by her office in relation to legal costs amounted to “fruitless and wasteful expenditure”.

Evidence leader advocate Nazreen Bawa revealed a list of court judgments against the office of the public protector on Thursday.

In summary, according to Bawa’s list, the office has been involved in 72 review applications and 27 appeal applications. The committee heard that there are also 10 matters that were initiated by the office under Mkhwebane which included her applications to stop the impeachment process and her suspension.

According to Bawa, 37 of Mkhwebane’s reports have been set aside and there are 47 pending before the high courts.

Bawa also shared that the controversial Absa/CIEX review involved six law firms, and cost the public protector’s office over R14-million, while the matter of the DA/Casac cost more than R5-million.

Muntu Sithole, head of legal services in the office of the public protector told the committee that he does not believe Mkhwebane wasted public funds on the legal battles.

Also read: ‘Public protector Mkhwebane wasted R146m fighting in courts’

Suspended public protector Mkhwebane suffers another blow

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