Mkhwebane sends Ramaphosa ultimatum to reverse her suspension, or face legal action

Suspended public protector Busisiwe Mkhwebane has written to President Cyril Ramaphosa demanding the immediate reversal of her suspension.

Ramaphosa suspended Mkhwebane with immediate effect last week, pending the outcome of an impeachment process in parliament. Impeachment hearings are due to start on July 11. 

In an eight-page letter dated June 13, Mkhwebane described her suspension as illegal and irrational. She demanded Ramaphosa reverse his decision to suspend her and indicate he had done so by no later than 5pm on Tuesday. 

Mkhwebane told the president, in the strongly-worded letter, that if he failed to reverse her suspension, she would refer the issue to court as a matter of urgency, without further notice to the president.

This, she added, was to protect her “violated” constitutional and other rights as a result of Ramaphosa’s conduct in unlawfully suspending her.

A challenge

Mkhwebane detailed in the letter what she regarded as irregularities in her suspension.

“Your decision to suspend me, as you put it, ‘pending the finalisation of the process taking place in the National Assembly’ is decidedly unlawful and invalid in that, to your knowledge, your power to do so in terms of section 194(3)(a) is not lawfully triggered by the taking place of the process but only arises ‘at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person’. Alternatively, I hereby squarely challenge you to pronounce when and on what occasion you may allege that the proceedings envisaged in the section had indeed started. Your conduct is ultra vires and illegal,” read the letter.

Mkhwebane said Ramaphosa’s decision would have a severe effect of impeding her preparation for the inquiry, adding it was in violation of her rights to fairness and full legal representation.

The public protector said though the letter stated she would continue to receive a salary and allowances attached to the position of the public protector during the period of suspension, such benefits could only be enjoyed if they were meaningfully exercisable in practice.

Mkhwebane also maintained Ramaphosa had a conflict of interest in the matter and his indication that he was “of the view that there is no such conflict” was totally irrelevant, because the test was objectivity and not subjectivity.

“Your subjective views are therefore completely irrelevant,” she said in the letter.

“You have notably not commented on whether or not, despite your ‘view’, there may be the risk of a conflict of interest, as contemplated in section 96(2)(b) of the constitution, which is binding upon you as a member of the cabinet.”

Mkhwebane said that section of the constitution prohibited the president from being the suspending authority in her matter due to a conflict of interest.

“The conflict or risk thereof arises because the six investigations in question, including the latest matters of Glencore and your Phala Phala farm, all involve serious and impeachable offences. That brings about the risk and/or reasonable apprehension on my part that you will not act impartially. That perception is based on the principles which were articulated in the matter of The President vs The Public Protector and Others 2018 (2) SA 100 GP, in which the court held that your immediate predecessor, President Jacob Zuma, was disqualified from appointing the state capture commission of inquiry on the basis of, inter alia, a perceived conflict of interest and/or the risk thereof.

“The same principle applies to you. Contrary to the part A judgment, you are not a beneficiary of the presumption of impartiality. That presumption only applies to judges and not other public officials in the legislature or executive,” Mkhwebane wrote.

An ‘inconsistent and unsustainable’ argument

She also rejected the speculative “reason” that related to the public protector purportedly “immunising” herself by initiating investigations against individuals she considered to be a threat.

“You are no threat to me. More importantly and to your specific knowledge, all the six investigations in question were not initiated by me but came as complaints from third parties. The pending litigation regarding the unsealing of documents in the Bosasa matter is likely to have an impact on whether or not the public protector has jurisdiction over the CR17 funding matter, depending on the identities of the donors and the extent of your direct involvement. In any event, even if the Bosasa matter were to be discounted or totally eliminated from the equation, the numerous conflicts of interest related to the remaining five investigations remain,” read the letter.

“As you clearly believe in respect of calls for you to step aside due to the much more serious allegations of criminal conduct levelled against you, in respect of which there is seemingly more than prima facie evidence, the availability of persons to whom the work of the office of the president can be delegated is not sufficient reason for suspending a person or forcing them to step aside from their current responsibilities. Your argument in this regard is therefore inconsistent and unsustainable if it can only be applied to others but not to you, with all due respect,” wrote Mkhwebane. 

Presidency spokesperson Vincent Magwenya said they would only respond to a request for comment after the president had responded to Mkhwebane.

TimesLIVE