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Mkhwebane loses bid in ConCourt to lift suspension

Published Jul 13, 2023


Suspended Public Protector Busisiwe Mkhwebane’s bid to overturn her suspension by President Cyril Ramaphosa pending a Parliamentary inquiry has been thrown out by the apex court.

Deputy Chief Justice Mandisa Maya said that the suspension by Ramaphosa was not irrational.

She said the president stood to benefit nothing from the suspension as parliament was handling the inquiry into her fitness to hold office.

Maya, who delivered a unanimous judgment against Mkhwebane on Thursday, also said there had been a number of adverse findings made against Mkhwebane in various courts.

The Constitutional Court itself has made grave findings against her.

Mkhwebane’s court outcome comes as the Section 194 committee is preparing to finalise its inquiry.

Chairperson of the inquiry, Qubudile Dyantyi said this week they will conclude the inquiry by the end of July.

In her judgment, Maya found there was a rational reason by Ramaphosa to suspend Mkhwebane.

“In this unanimous judgment written by me, this court holds that there was a rational reason for the precautionary suspension of the public protector, which benefits her and her office as it allows her to centre her attention on her defence in the inquiry and safeguards the integrity of her office, and it cannot be said that the president’s decision to suspend her was irrational, even if there were other rational causes open to him,” said Judge Maya.

She said in coming to her ruling she had considered a number of factors, including the report of the independent panel, chaired by former Constitutional Court Judge Bess Nkabinde, which had made damning findings against Mkhwebane.

The panel had found that Mkhwebane had a case to answer.

Maya said she had also taken into account various court judgments against Mkhwebane, including those of the Constitutional Court.

“In these circumstances it would undoubtedly cause grave public concern about the integrity of the office of the public protector were the incumbent to remain in office while being investigated,” said Maya.

She added that the suspension by Ramaphosa was not to prevent Mkhwebane from conducting an investigation into Phala Phala.

“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 this suspension would cause,” said Maya.

Acting Public Protector Kholeka Gcaleka released her report into Phala Phala a few weeks ago where she cleared Ramaphosa of wrongdoing.

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