Mkhwebane’s application to go back to work ‘inappropriate’, says Ramaphosa

Public protector Busisiwe Mkhwebane’s bid to return to work is  “manifestly inappropriate”‚ state attorney for President Cyril Ramaphosa says. 

Mark Owen was answering the “extremely urgent” court application by the suspended public protector‚ asking the high court in Cape Town to order that she be allowed to immediately return to work after it ruled last week that the president’s decision to suspend her was unlawful.

Her suspension has been kept in place for now by applications for leave to appeal against the order by Ramaphosa and the DA.

Mkhwebane’s application in terms of section 18 of the Superior Courts Act — for the court to go against what usually happens when there is an appeal process under way — will be heard on Friday.

But, the president and the DA argue‚ their applications for leave to appeal are not the main reason her suspension remains in place. Their applications were made “out of an abundance of caution” just to be on the safe side. The correct position in law‚ they say‚ is that the high court order has “no force” until it is confirmed by the Constitutional Court.

They rely on section 172(2)(a) of the constitution‚ which says that when it comes to an order of constitutional invalidity concerning “any conduct” of the president‚ the order has no force until it is confirmed by the highest court.

The DA’s Siviwe Gwarube says in her answering affidavit that section 18 does not apply to orders that are subject to confirmation.

Owen says the “plain wording” of the constitution makes it clear that an order under section 18 would not bring the high court order into force — only the Constitutional Court can do that. What Mkhwebane seeks is therefore “manifestly inappropriate”‚ he says.

Gwarube’s answering affidavit was filed on Tuesday afternoon and Owen’s on Wednesday morning.

Mkhwebane has strongly disputed that the high court’s order falls within the ambit of section 172(2)(a) — something likely to be the subject of a heated debate on Friday.

In any event‚ say both the DA and the president‚ even if they are wrong‚ Mkhwebane would have to show that there are exceptional circumstances warranting her immediate return to work and that she would suffer irreparable harm if she doesn’t.

Owen says the fact is that Mkhwebane is the public protector and because this is the first time a public protector has purportedly been suspended does not amount to exceptional circumstances.

“There is no dispute that the public protector is an important constitutional institution. However‚ the importance of the office and its role in our constitutional democracy does not, without more‚ establish exceptional circumstances‚” says Owen.

Owen also responds to Mkhwebane’s allegation that the public protector’s Phala Phala investigation has been unduly delayed “because of the unlawful suspension”.

He says Mkhwebane “places no facts before the court to demonstrate that her suspension has impeded the Phala Phala investigation in any manner whatsoever”. Nor has she put up any facts to demonstrate that her suspension had “in any way affected the investigation negatively or resulted in the deputy public protector being unable to fulfil her obligations in respect of the investigation”‚ he says.

Ramaphosa’s attorney‚ Peter Harris — representing the president in his private capacity in the public protector’s Phala Phala investigation — has also put in an affidavit confirming that Ramaphosa has co-operated fully in the investigative process.

Harris said there had been “a number of interactions” with acting public protector Kholeka Gcaleka and representatives of her office‚ “including a virtual meeting‚ exchange of correspondence and submission of requested information and documentation”.

“We are aware that the acting public protector and members of the investigation team have made contact with a number of witnesses involved in the issues which form the subject matter of the investigation and given them short deadlines by which to respond‚” said Harris.

Owen and Gwarube say Mkhwebane has failed to show she would suffer irreparable harm if she were to remain on precautionary suspension. On the other hand‚ there will be irreparable harm to the public interest if she were to be allowed to return‚ they say.

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