Durban - Public Protector advocate Busisiwe Mkhwebane has penned a letter to President Cyril Ramaphosa urging him to withdraw the notice of suspension issued to her by the head of state.
Mkhwebane's fight back follows Ramaphosa’s notice of suspension sent to her on March 17 asking that Mkhwebane provide grounds, within 10 working days of the receipt of the letter, explaining why Ramaphosa should not suspend her.
Fighting back Mkhwebane penned the letter through her lawyers and said that irrespective of the grounds why the suspension would be illegal and inappropriate, Ramaphosa was not legally entitled or competent to take any steps, including the notice of suspension, in the pursuance of section 194(3)(a) of the Constitution.
The public protector’s legal team characterised the letter from Ramaphosa as being unlawful and unconstitutional, adding that it should be withdrawn and that it could not be implemented.
“At this stage we are instructed to demand that the president must completely step away from this process,” wrote the lawyers.
“The reason is that the president is personally, heavily and multiple conflicted in this matter due to various investigations which have recently been or are presently being investigated by her against or concerning allegations of breach of ethics or violations of the Constitution.
“In that connection, it would be convenient to refer you to or remind you of your own concessions made under oath in respect of the so-called Bosasa matter. Bosasa has also been recently identified in the Zondo Commission report as a key conduit for the crimes of corruption and money laundering to mention but a few,” Mkhwebane’s lawyers wrote.
They further claimed that the courts had admittedly refused to entertain the merits of these serious complaints on the technicality that their client, Mkhwebane, had no jurisdiction to investigate non state fundraising, notwithstanding that the recipient of these funds was Ramaphosa in his previous capacity as deputy president of the country.
The funds received by Ramaphosa that Mkhwebane’s lawyers refer to are the bank statements of Ramaphosa’s CR17 donor funds which enabled his victory at the 54th National Conference in Nasrec in December 2017, which have been sealed.
“The conflict, however, arose from the mere fact that an investigation took place. It would be a fundamental mistake to adopt the view that the admitted conflict, whether actual or potential, simply disappeared or evaporated with the most recent finalisation of all related litigation.
“Moreover, in any event, it is common cause that the president is also fingered in a few other current investigations involving equally serious and impeachable conduct,” Mkhwebane’s lawyers said.
This serious and impeachable conduct, according to Mkhwebane’s lawyers, included the utterances by Ramaphosa about the misuse of public funds by ANC politicians, and allegations of collusion between Ramaphosa and Minister of Justice Ronald Lamola in their “joint pursuit of judicial capture”.
The public protector’s lawyers further stated that Ramaphosa was disqualified because his own concessions or related undertakings continued to apply both in respect of the Bosasa matter and the current investigations.
Other reasons stated by the lawyers include that the principles of natural justice, with specific reference to the maxim nemo judex in rem sua (no one should be a judge in their own cause); the provisions of section 96 of the Constitution with specific reference to s96(2)(b) of the Constitution which provides that “members of the cabinet ... may not act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”; and the president's oath of office in which he swore, among other things, to be faithful to the Republic of South Africa, to obey, observe, uphold and maintain the Constitution and all other laws of the republic, to be true to dictates of his conscience and do justice for all.
POLITICAL BUREAU