President Cyril Ramaphosa. (Lulama Zenzile/Die Burger/Gallo)
Officially, President Cyril Ramaphosa is still deciding whether to appeal the high court ruling that found his suspension of public protector Busisiwe Mkhwebane was tainted by a reasonable apprehension that he was biased because she had begun investigating the Phala Phala game farm controversy.
“At the moment, he is still applying his mind,” his office said of Friday’s Western Cape high court ruling which has sparked much debate about its implications and a flurry of legal interventions.
However, a letter from acting public protector Kholeka Gcaleka to the high court states that her office was aware that counsel for the president was preparing to file papers to the constitutional court imminently, seeking leave to appeal. It furthermore signals her intention to oppose an urgent bid by Mkhwebane to enforce the court order and return to work.
The Democratic Alliance (DA) filed for leave to appeal on Friday, not long after the high court ruling was delivered, effectively suspending the implementation of the order of invalidity and ensuring Mkhwebane could not return to office.
But on Saturday, Mkhwebane lodged an urgent application in terms of section 18 of the Superior Courts Act for the immediate implementation of the court order.
To succeed, she needs to show that she would suffer irreparable harm if it does not come into force without delay.
In court papers, she argues that her whole career is at stake in the matter and that it is imperative that she return to work to pursue investigations, including the one pertaining to the theft from Ramaphosa’s Phala Phala farm. The application was set down to be heard on Wednesday morning.
The letter from the Gcaleka’s counsel to the registrar of the high court indicates she is opposing the application.
“These averments are concerning to the extent that they suggest that the Office of the Public Protector is unable or ill-equipped to complete certain investigations in the absence of Adv Mkhwebane,” it reads.
“We are instructed to file an application in this court for leave to intervene in Adv Mkhwebane’s urgent application to place necessary facts before this court relevant to investigations pending in the office of the public protector, as referred to in the founding affidavit.
“We submit that the acting public protector, on behalf of the office she holds, has a direct and substantial legal interest in the subject matter of the litigation.”
However, counsel for the chapter nine institution added that it was unable to file papers on Wednesday, in accordance with timelines set out in Mkhwebane’s application.
It therefore asked for a case management meeting on Monday evening.
Like the DA, Gcaleka took the view after the ruling was handed down that Mkhwebane’s suspension remains in place.
In its application for leave to appeal, the official opposition argues that the court misdirected itself either on principles of law, or the facts of the matter, or both.
The appeal bid has been filed in terms of section 172(2) of the constitution, and the party says that the high court order is subject to confirmation by the apex court, as all findings of constitutional invalidity by lower courts are.
“This is because it is an order that ‘the conduct of the president’ is unconstitutional and unlawful,” the party said in a supporting affidavit, adding that legal precedent was clear, therefore confirmation was needed.
Once that is so, it said, it had a right to appeal against the high court order in terms of section 172(2)(b) as well as the Superior Courts Act 10 and the rules of the constitutional court.
In correspondence to the DA, Mkhwebane has rejected the party’s reading, saying on her interpretation the ruling falls under section 172 (1) of the constitution, which allows courts to make any order that is “just and equitable” when delivering a finding of constitutional invalidity.
But legal experts were puzzled by her reasoning, noting that sections 172(1) and (2) must be read together and it was clear in the latter that “an order of constitutional invalidity has no force unless it is confirmed by the constitutional court”.
“The DA contends that the public protector is plainly wrong as a matter of law in her stance,” the party said in its affidavit, but it is leaving nothing to chance in its approach to the apex court. It is not only opposing the confirmation of the order, but alternatively, seeking direct leave to appeal the finding of the high court.
“The DA does so purely as a matter of caution,” the party said, because it “wishes to avoid this case being mired in such technical debates and the confusion that could result from this”.
The high court found that Ramaphosa’s suspension was “certainly tainted by bias of a disqualifying kind and perhaps improper motive”.
He took the step two days after Mkhwebane sent him questions to answer in the Phala Phala investigation and one day before a high court ruling was handed down on her application for an interdict to bar him from suspending her.
Ramaphosa had submitted that it was only after he suspended her that he received notice that the ruling would follow the next day.
But the court held that he was conflicted and could not bring an unbiased mind to bear on the decision.
“On these objective facts, it is reasonable to form the perception that the suspension of the applicant was triggered by the decision of the applicant to institute an investigation against the president,” judges James Lekhuleni, Matthew Francis and Lister Nuku said.
“There is no other plausible or logical explanation for the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.”
The DA argues that the court was wrong to conclude that Ramaphosa’s decision was improper, that it was triggered by Mkhwebane’s decision to investigate him and that it was “done on a whim or for flimsy reasons”.
“The high court erred in finding that the suspension of the public protector was ‘hurried’, and in any event that the ‘hurried’ nature of the suspension leads to an ineluctable conclusion that the suspension may have been retaliatory and hence unlawful.”
The president had written to Mkhwebane on 17 March to ask for reasons why he should not suspend her pending the outcome of a section 194 parliamentary inquiry into her fitness to hold office.
She responded that he was conflicted due to the number of investigations against him being undertaken by her office and filed, unsuccessfully, for an interdict.
In Friday’s ruling, the high court noted that, at the time her application was argued in court, the Phala Phala investigation, which involves his private interests, had not yet begun.
The DA party said clarity from the apex court was urgently needed as to whether the president’s suspension of Mkhwebane was unlawful, and if it was, whether it was just and equitable to allow her to return to work while the parliamentary inquiry mulling her removal for misconduct and incompetence was ongoing.
In her application, Mkhwebane accuses the party of pursuing a vendetta to prevent her from returning to work.
The public protector’s investigation into the so-called farmgate scandal was sparked by a complaint filed by the African Transformation Movement and revolves around whether the president breached the executive ethics code.
It has continued under Gcaleka. Last month, Ramaphosa replied to the questions under threat of subpoena, after being denied a second extension of the deadline to do so.
The parliamentary inquiry heard last week that, under Mkhwebane, the public protector had spent close to R147-million on litigation defending her reports. Gcaleka has informed Mkhwebane that the office would continue to fund her legal bid to overturn her suspension.
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