DA slates Ramaphosa for allowing the public protector to stay in office for now

The DA has criticised President Cyril Ramaphosa for giving public protector Busisiwe Mkhwebane a temporary reprieve on her impending suspension.

In a lawyer’s letter to Ramaphosa, the DA said it agreed that he was not conflicted when he asked Mkhwebane why she should not be suspended while the parliamentary impeachment process is under way.

But the party criticised Ramaphosa for agreeing to allow Mkhwebane to remain in office while she prepared a court application on the matter.

Two weeks ago, Ramaphosa wrote to Mkhwebane, giving her 10 days to say why she should not be suspended given the impeachment process.

Mkhwebane wrote back telling Ramaphosa, among other things, that he was conflicted in the matter in the light of investigations she had undertaken and was still doing.

“The DA objects to the president granting any undertaking to the public protector. There is no legal basis for the public protector to demand such an undertaking,” the party said.

“The inevitable result of the undertaking will be to further protract litigation. It will also mean the public protector remains in office for months despite serious reasons that she should be suspended while the National Assembly does its job.

“First, there is no basis for the president not to decide whether to suspend the public protector as soon as possible. The president’s power to suspend her has been triggered. He has a constitutional obligation to decide. That obligation must be exercised 'diligently and without delay'.”

Mkhwebane’s desire to litigate, or even launch litigation, does not prevent the president from acting, or detract from his duty to act without delay, it said.

The DA said it was not clear what relief the public protector intends to seek, against whom or on what grounds. 

“She claims both that the [section 194] committee must cease its work because she has brought a baseless rescission application and that you are conflicted. Presumably the threatened urgent application will canvass either or both of these issues.”

The application by Mkhwebane had no prospects of succeeding, the party said.

“The only basis on which the public protector claims the [section 194] committee should delay its work is her rescission application in the Constitutional Court. But it is basic law that the mere launching of a rescission application does not suspend the operation of the underlying order.

“There are zero prospects that a court will require the committee to halt its work until that rescission application is determined. The rescission application is, in any event, entirely without merit. The president has already concluded that he is not conflicted. The DA agrees with his position and his reasons. 

“The supposed conflict is used as a ruse by the public protector to avoid accountability. But even if the president is conflicted, that is no basis to delay a decision on suspension.”

If Mkhwebane wanted to interdict Ramaphosa from acting she was free to try, the DA added, but the president should not be complicit in using the courts to second-guess his own legal advice.