President Cyril Ramaphosa’s decision to suspend public protector Busisiwe Mkhwebane was “the only possible rational outcome” and not retaliation for her investigation of him, says the Constitutional Court.
On Thursday, the apex court overturned last year’s Western Cape High Court finding that the president’s decision to suspend Mkhwebane was irrational. Mkhwebane’s suspension, pending the outcome of the section 194 inquiry, stands.
In 2022, Ramaphosa began correspondence with Mkhwebane when the section 194 inquiry into her fitness to hold office started. He asked her to provide reasons why she should not be suspended and granted her four extensions throughout 2022.
In June 2022, Arthur Fraser, a former senior investigating officer, laid criminal charges against Ramaphosa pertaining to foreign currency stolen from his Phala Phala farm. After complaints were lodged, Mkhwebane informed Ramaphosa she was investigating him.
A few days later Ramaphosa informed her that she was suspended.
Mkhwebane challenged Ramaphosa’s decision to suspend her in the Western Cape High Court. The full high court ruled that Ramaphosa’s suspension decision was “retaliatory”, “premature” and “tainted by bias” because of the Phala Phala investigation. It declared Mkhwebane’s suspension unlawful.
The DA and Ramaphosa appealed against the decision in the Constitutional Court.
The DA highlighted there was no benefit to Ramaphosa in suspending Mkhwebane, since the acting public protector would simply take over. It also argued that her suspension was a “necessary precaution” to protect the integrity of the office.
Ramaphosa made similar arguments and also clarified the timeline. He noted that the decision to suspend Mkhwebane began in March 2022, well before she started the Phala Phala investigation. He also showed he derived no benefit from her suspension.
Mkhwebane argued Ramaphosa’s decision does not fall within “conduct of the president” that warrants the apex court’s confirmation. After all, not every single thing done by the president warrants the court’s attention. She also argued that bias can arise at any time and Ramaphosa’s timeline argument should be dismissed, claiming he acted in retaliation.
Writing for a unanimous court, deputy chief justice Mandisa Maya said: “Allowing a person who is potentially dishonest and incompetent to continue to exercise the wide powers of the Office of the Public Protector threatens democracy and accountability.”
The suspension’s purpose was “to protect the integrity of the office”.
Maya also highlighted “grave adverse credibility findings” made by the Constitutional Court and others against Mkhwebane were “justifications” for a precautionary suspension.
Maya noted that the suspension allowed Mkhwebane to focus on the section 194 enquiry without also having “to manage the office she leads”.
Thus, suspension was “the only possible rational outcome”. Maya dismissed Mkhwebane’s argument that there were “sinister forces” at work in government and the judiciary.
Maya reiterated that any court decision overturning the president’s conduct requires confirmation by the apex court, according to the constitution.
She dismissed the claims about bias. “The mere fact that the public protector is investigating him,” she wrote, “cannot create a reasonable apprehension of bias.” There must be proof he derived some “benefit” from his decision. None was shown.
Further, Mkhwebane is not prejudiced, said Maya, as “she remains on full pay and has time to properly attend to her defence in the section 194 inquiry”.
Maya held that the high court “overlooked critical evidence that amply shows that the suspension was long in the making”. There was nothing “hurried” , since the letter indicating her suspension had taken days to prepare.
Maya also dismissed Mkhwebane’s various cross-appeals.
Maya set aside the high court’s order and Mkhwebane was ordered to pay costs in her personal capacity for one of her appeal applications which “burdened” the court and other parties.
Ramaphosa’s office “welcomed the judgment by the Constitutional Court “affirming the president’s adherence to due process and fairness”.
The DA also welcomed the judgment. In a statement, the party said it “urges Adv Mkhwebane to cease engaging in litigation aimed at stalling the section 194 inquiry proceedings, and instead offer the section 194 committee her full support and co-operation in order for it to reach a timely conclusion”.
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