President Cyril Ramaphosa acted without bias when he suspended public protector Busisiwe Mkhwebane, advocate Steven Budlender for the DA argued in the Constitutional Court on Thursday.
The top court is hearing three consolidated applications emanating from the judgment by the Western Cape High Court declaring the president’s decision to suspend her invalid.
The first two applications are for leave to appeal brought by the DA and the president against the high court’s order. The third is an urgent application for leave to appeal brought by Mkhwebane against an October high court ruling that rejected her bid to immediately return to work. It argued then that the Constitutional Court was yet to rule on the September order that set aside her suspension.
The judges said this order had no force until it was confirmed by the top court. Budlender told the court Ramaphosa’s decision to suspend Mkhwebane was appropriate, the president followed the proper procedure in doing so and there was no bias on his side.
“On March 18, President Ramaphosa wrote to the public protector and asked her to give reasons why she should not be suspended. No-one knew about Phala Phala,” Budlender said.
“She started making requests to slow the process. The president started giving undertakings. We know the president bent backwards to accommodate Mkhwebane.”
He detailed the extension requests made by Mkhwebane, which the president granted at all times. “The president did what any reasonable person would have done. He took two weeks to apply his mind. That timeline shows there is no bias on the side of the president. He tried to assist Mkhwebane.
“Should the court find the president was biased in his decision to suspend the public protector, it would be catastrophic for the Phala Phala investigation if she returns to the office,” he said.
Budlender disputed the argument the president retaliated after she sent them in early June, adding Ramaphosa planned to publicly disclose his replies to her 31 questions about Phala Phala to the court.
“He didn’t do so because the public protector asked him not to do so. She said this might compromise and jeopardise the investigation if his answers went into the public domain,” he said.
Mkhwebane sent Ramaphosa questions about Phala Phala on June 7. She announced the step to the public the following day. Ramaphosa axed Mkhwebane on June 9.
“It was always clear that if the public protector was suspended then the acting public protector would take over and the investigation would continue,” said Budlender.
Budlender said Mkhwebane’s deputy, advocate Kholeka Gcaleka, was not a “stooge”. Rather she was running a prioritised investigation that she “plainly took very seriously”.
The office had engaged witnesses Mkhwebane identified and obtained their evidence. Evidence included “voluminous documents”, which investigators were analysing and 11 further witnesses had been identified.
Mkhwebane’s counsel, Dali Mpofu, said “the mere risk of conflict” of interest disqualified Ramaphosa from suspending her. He said Ramaphosa was “lenient” for months, granting Mkhwebane extensions, but acted “on the speed of light” after she asked him about Phala Phala.
He insisted it was not necessary to prove bias, rather the reasonable apprehension of bias, and that the context dating back to March did not resolve the matter.
“Ramaphosa exposed himself to the risk of a conflict between his official responsibilities as president and his private interests as a businessman or as a game farmer,” said advocate Vuyani Ngalwana, representing three political parties, the UDM, ATM and the PAC.
Ngalwana said Ramaphosa’s “audacity” in suspending Mkhwebane on June 9 “couldn’t have been a coincidence”.
Judgment was reserved.
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