The Constitutional Court on Thursday set aside the Western Cape High Court ruling that found President Cyril Ramaphosa’s decision to suspend Public Protector Busisiwe Mkhwebane last year was unlawful.
In a unanimous ruling, Deputy Chief Justice Mandisa Maya upheld Mkhwebane’s suspension and found no conflict of interest by Ramaphosa in suspending her while investigating the Phala Phala saga.
Mkhwebane sought court relief after being suspended two days after she informed Ramaphosa that she was probing the theft of dollars on his farm.
The high court ruled in her favour when it declared the decision to suspend Mkhwebane invalid and set aside her suspension, but the DA and Ramaphosa appealed the ruling.
In upholding the appeals, Maya said: “The full court should have dismissed the Public Protector’s application in its entirety.”
Maya said it was incorrect for the High Court to make a finding that Ramaphosa’s decision to suspend Mkhwebane was made hurriedly or that it was prompted by the Phala Phala investigation. At the time of her suspension, Mkhwebane was facing a section 194 enquiry and the suspension eliminated the risk of interference in the section 194 enquiry.
“It is well established that where a high ranking official has access to potential witnesses and documents in the workplace which may be used in a disciplinary enquiry, there is a real risk that they may use their power to influence the witnesses and conceal the documents.
“In this case, the Section 194 Committee needs to hear evidence from, among others, employees in the Office of the Public Protector, and access documents under the Office’s control.”
She also said the mere fact that the Public Protector was investigating Ramaphosa could not create a reasonable apprehension of bias or expose him to a risk of conflict between his official responsibilities and private interests.
“The President stood to gain nothing from suspending the Public Protector.
There is no support on the record for the submission that the President suspended the Public Protector to influence the outcome of the Phala Phala investigation and benefit from the delay that the suspension would cause,” she said.
“The Acting Public Protector, who has not been shown to be incompetent or to lack independence, continued with the investigation diligently and insisted on a response to the 31 questions posed by the Public Protector to the President, which were then furnished,” she said.
Maya also said Ramaphosa did not suspend Mkhwebane to prejudice her.
“The suspension is only a precautionary one and does no harm to her as she remains on full pay and has time to properly attend to her defence in the section 194 enquiry.It also does not cause her reputational harm as she is already subject to a highly public enquiry in which the allegations leading to her suspension have been ventilated.”
In a short statement, the presidency said: “President Cyril Ramaphosa has noted and welcomed the judgement by the Constitutional Court, affirming the President's adherence to due process”.
Mkhwebane took to Twitter and stated: “As expected the ConCourt did not “disappoint’”.
DA MP Glynnis Breytenbach said her party supported the apex court's decision to uphold the suspension.
“The suspension is necessary to protect the Office of the Public Protector while the Committee for Section 194 Enquiry completes its investigation into Mkhwebane's potential removal,” she said.
“The continued suspension of Adv. Mkhwebane will allow her to focus upon her defence in Parliament, and prevent reputational damage to the Office of the Public Protector while the inquiry is finalized,” she added.
ATM spokesperson Zama Ntshona said his party rejected the judgment.
“While we are not surprised by this judgment, given the history of unfair and bizarre judgments whenever Advocate Busisiwe Mkhwebane appears before the apex court, we firmly believe that this judgement does not reflect the principles of justice and impartiality,” Ntshona said.
He insisted that Mkhwebane’s suspension was triggered by her investigation involving Ramaphosa.
“There is no other explanation for the premature suspension of Advocate Mkhwebane which also took place on the eve of a judgment meant to determine the very lawfulness of the suspension,” Ntshona said.
National Assembly Speaker Nosiviwe Mapisa-Nqakula welcomed the judgement, saying it affirmed her constitutional obligation to inform the President of the section 194 Committee developments.
Spokesperson Moloto Mothapo said Mapisa-Nqakula agreed with the apex court that the letter she sent to Ramaphosa aimed to trigger her suspension.
“According to the Constitution, the President may suspend an individual from office at any point after the start of the proceedings of a National Assembly committee for their removal.
“The letter merely conveyed the factual position, specifically the Section 194 Committee's decision to continue its inquiry,” he said.