EXPLAINER: A brief history of Mkhwebane’s legal challenges

The Constitutional Court ruled last week that Busisiwe Mkhwebane’s suspension as public protector should remain in place.

President Cyril Ramaphosa suspended her from office last year, pending the findings of a parliamentary inquiry into her fitness.

Here are some key points from Thursday’s judgment and a brief history of Mkhwebane’s challenges:

What is the public protector’s office?

The public protector SA is dedicated to protecting citizens from all forms of governmental harm. As its official site indicates: “the public protector has the power to investigate, report on and remedy improper conduct in all state affairs”.

Who is Busisiwe Mkhwebane?

Mkhwebane is the fourth public protector, who took office in 2016. She took over from Thuli Madonsela. Mkhwebane was a prosecutor, legal researcher, and director at home affairs. She also worked for the State Security Agency before becoming public protector. Her term comes to an end in October, unless she is impeached before then, which requires a two-thirds majority of the National Assembly.

Why was Mkhwebane suspended?

In 2019, the DA submitted a request to parliament for Mkhwebane to be removed from office after many adverse court findings, including from the Constitutional Court.

The Constitutional Court on Thursday said it and other courts had made “gravely adverse credibility findings” in many earlier matters. In earlier Constitutional Court judgments, for example, the court said she had “acted in bad faith and in a grossly unreasonable manner” and had “not been candid” with the courts. 

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These and other similar findings against her prompted the DA request for her removal. 

Part of the process of removal requires a parliamentary inquiry, which will submit a report to the National Assembly. If it is taken forward by the National Assembly, there will be a vote.

The constitution affords the president the power to suspend the head of institutes, such as the public protector, once an inquiry into their removal begins. This is to protect the integrity of the office, says the Constitutional Court. As a result of the inquiry being formed last year, Ramaphosa decided it was best to suspend her. The Constitutional Court on Thursday said this would also afford her space to “defend herself in the enquiry”.

What is the Phala Phala investigation?

In June last year, there was concern that Ramaphosa was implicated in theft of foreign currency from his farm, Phala Phala in Limpopo in 2020. Former spy boss Arthur Fraser brought charges, claiming a large amount of US dollars had been stolen, and Ramaphosa had not reported it or declared the money.

This led to an investigation last year, by the Office of the Public Protector, which, at the time, Mkhwebane still headed.

How is Phala Phala related to Mkhwebane’s suspension?

Ramaphosa decided to suspend Mkhwebane in June last year, a day after receiving an initial round of questions from her office about Phala Phala.

Once she was suspended, Mkhwebane challenged this in the Western Cape High Court. The high court ruled that there was a reasonable suspicion the president suspended her in retaliation for her Phala Phala investigation, given the timing.

Why did the Constitutional Court disagree with the high court?

The Constitutional Court said the high court “had overlooked critical evidence that amply shows the suspension was long in the making”. Ramaphosa had begun considering her suspension months before Phala Phala was even an issue. In fact, the DA asked Ramaphosa to make a determination earlier, but he delayed his final decision because he had afforded Mkhwebane many extensions to say why she should not be suspended.

Thus it was his granting various extensions that dragged the matter out into June, before Mkhwebane even received complaints about Phala Phala.

Further, the Constitutional Court noted there were many drafts of the letter Ramaphosa eventually sent, days before he received notice of the investigation.

What is next for Mkhwebane?

Unless she attempts some form of rescission of the Constitutional Court judgment (which can only be done by the Constitutional Court), Mkhwebane’s suspension remains. She is therefore temporarily not in office as the public protector. However, she still receives her full pay and is able to ventilate her concerns in the inquiry, said the Constitutional Court.

moosat@businesslive.co.za