Gcaleka enters fray to keep Mkhwebane out of office

Lawyers for the acting public protector, Kholeka Gcaleka, want to intervene in the urgent litigation by her suspended boss Busisiwe Mkhwebane to return to work. 

The Western Cape high court on Friday quashed President Cyril Ramaphosa’s suspension of SA’s public protector a day after she launched a probe into a burglary at his farmhouse, calling the move “improper”.

The court said the “hurried nature” of Mkhwebane’s suspension suggested it “may have been retaliatory” and thus unlawful.

On Saturday, Mkhwebane made an “extremely urgent” court application that would allow her to immediately go back to work. One reason for wanting to return to the office over the weekend was “to tackle the urgent tasks awaiting at my office, including the most urgent issue of the Phala Phala investigation”.

In a letter to the court, the acting public protector said Mkhwebane’s statements about current investigations by her office were “concerning”.

The public protector’s office, under the helm of Gcaleka, is investigating a complaint against Ramaphosa that he breached the executive code of ethics after the burglary at his Phala Phala game farm in Limpopo.  

According to a letter, sent on Sunday to the Western Cape high court, the office of the public protector “noted numerous factual averments” in Mkhwebane’s application.

“These averments are concerning to the extent they suggest the office of the public protector is unable or ill-equipped to complete certain investigations in the absence of advocate Mkhwebane,” said the letter.

It said lawyers for the office had been instructed to apply to intervene in Mkhwebane’s urgent litigation “to place necessary facts before this court” relevant to pending investigations.

The letter also revealed Ramaphosa would, like the DA, apply to the Constitutional Court to appeal against Friday’s judgment by the Western Cape high Court that declared unlawful his decision to suspend Mkhwebane.

Mkhwebane wanted her application heard urgently on Tuesday, but counsel for the president is apparently unavailable on Tuesday, said the letter.

The legal effect of the DA’s application for leave to appeal is that Mkhwebane remains suspended.

In her application, Mkhwebane said there had been an “unprecedented and highly publicised” march to the offices of the public protector by several opposition parties represented in parliament. Their main grievance, she said, was “the perceived undue delay in attending to the urgent matter of Phala Phala”. 

She said an undertaking had been given to the marchers that the matter would be looked at in the next seven days, “a period which expires on September 16, which is around the corner”.

“Among others, this issue was uppermost in my mind in seeking to start over the weekend,” she said in her application.

Mkhwebane said the DA’s application for leave to appeal, filed at the Constitutional Court on Friday, was to “block me from going to my office” and to “undo the legal effect of the judgment”.

“I felt very strongly the process of the court was being severely abused,” she said.