The president cautions that the courts cannot interfere with his constitutional power to suspend the public protector, barring compelling reason, which he claims she failed to field.
Public protector Busisiwe Mkhwebane fails to explain — in her court bid to stop him from suspending her — why he has a conflict of interest that prevents him from proceeding, President Cyril Ramaphosa has argued in an answering affidavit to the application.
“In the present instance, there is no such conflict, in that there is no divide between my official responsibilities and my private interests,” Ramaphosa said in papers filed in the Western Cape high court.
Mkhwebane approached the court for an interdict after the president wrote to her last month asking for reasons why he should not suspend her, pending the outcome of parliament’s section 194 process to remove her from office.
In her founding affidavit, she alleges that Ramaphosa is disqualified from exercising his constitutional power to suspend her because he has been or remains the subject of numerous investigations by her office for serious and impeachable conduct.
Therefore, he cannot participate in the section 194 process “due to the fact that there is a conflict of interest, or at best for him, the risk thereof”.
The president in his reply asks where the conflict, or the risk, lies.
“Nowhere in the founding affidavit does the public protector identify any private interests of mine that are in issue. The alleged past and/or pending investigations that the public protector relies on … all relate to me in my official capacity and pertain to official responsibilities.”
The thrust of her case is that Ramaphosa cannot exercise a power conferred on him by the constitution to suspend her because she has investigated complaints against him during his term in office, or his time as deputy president.
“The challenge cannot succeed in circumstances where the public protector cannot even establish that there is a conflict of interests,” Ramaphosa argues.
The standoff began in mid-March when Ramaphosa wrote to Mkhwebane with a view to suspending her. She responded by asking that he withdraw the letter — a legally fraught demand, which now forms part of her court application — because he was not legally competent, given that there were current investigations by her office against him.
These, she added, included the complaint about remarks that suggested Ramaphosa knew about the abuse of public funds by governing party politicians. Beyond that, she suggested, there were allegations that he and Justice Minister Ronald Lamola were pursuing “judicial capture”.
Ramaphosa, in his reply, reiterated that his remarks about the abuse of public funding were made at a level of generalities. He stressed, as he does in his court papers, that the mere fact of the chapter nine institution investigating him did not constitute a conflict of interest.
Had this been the case, he added, Mkhwebane could conveniently shield herself against impeachment by investigating anybody involved in the process.
Ramaphosa added that he had been lenient towards Mkhwebane and bore no grudge because she had found against him. He said he had exercised his right to take her directives on review and had been vindicated by the courts.
“That was the end of the matter.”
The constitutional court last year dismissed Mkwebane’s appeal against a scathing high court ruling dismissing her report on undisclosed private donations to Ramaphosa’s so-called CR17 campaign for the ANC leadership.
The court said she had made grave errors in fact and law to arrive at the conclusion that the president be probed for money-laundering, adding that this could not have come about in good faith, because some of the instances of wrong thinking involved “defy characterisation as an innocent mistake”.
Her subsequent rescission application was dismissed with costs.
In his affidavit, Ramaphosa dismissed Mkhwebane’s contention that a pending appeal by the Economic Freedom Fighters to a high court judgment dismissing its demand for the release of the record of donations had any relevance to the application regarding suspension.
“The litigation is by a political party trying to gain access to records of an internal campaign within another political party for reasons that are not explained,” he wrote.
“It does not concern the exercise of any public powers, and certainly does not pit the office of the public protector against the office of the president.” More so, he said, because they are both cited as respondents.
Mkhwebane also seeks to interdict parliament and the section 194 committee from proceeding with the impeachment inquiry. In the second part of her application, she asks for an order declaring Ramaphosa’s conduct in initiating her suspension unconstitutional, irrational and invalid.
He countered that the constitution confers on him the power to suspend a person from office at any time after the National Assembly has instituted proceedings to remove said person from office. Once the assembly adopted a resolution calling for removal, he was compelled to heed it, Ramaphosa said, hence the application was audacious.
“Despite this constitutional power, the breadth of the interlocutory relief sought against me is staggering.
“It seeks, inter alia, to prohibit me from ‘taking any steps’ in pursuance of suspension and from taking ‘any further steps in respect of the section 194 process.”
Ramaphosa adds that he was advised that on policy matters the constitutional court was loath to grant interim relief except in cases in which the applicant had strong grounds for success on the main review because it risked intruding on on the terrain of the executive.
“The inquiry must, alongside other relevant harm, have proper regard to what may be called separation of powers harm,” he cautioned.
Mkhwebane was unlikely to succeed in the main review because the conduct she tries to impugn is expressly mandated by the constitution.
“There is, however, no basis at all for such an order, given that I derive the power to suspend from a constitutional provision.”
The parties have asked the high court to hear the matter on 25 to 26 April.
The impeachment process was initiated a year after an expert panel found prima facie evidence of repeated incompetence and misconduct on Mkhwebane’s part and recommended that the legislature refer the matter to a committee for further investigation.
She won time by challenging the composition of the panel and the rules governing the process, but in February the apex court found that the process could proceed, because it had not been unconstitutional. In one victory for Mkhwebane however, it ruled that she should be allowed legal representation throughout the hearings of the section 194 committee.
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