Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)
Counsel for President Cyril Ramaphosa on Thursday argued before the constitutional court that the timing of his suspension of Public Protector Busisiwe Mkhwebane two days after she launched a probe into the Phala Phala scandal was an unfortunate twist of fate, not proof that he was acting in retaliation.
Advocate Geoff Budlender SC told the court the letter of suspension served on Mkhwebane on 9 June had been prepared over a number of days and this process began before she wrote to Ramaphosa on 7 June to inform him of her investigation into the theft of foreign currency from his Limpopo game farm.
“The difficulty that arises in this case is the coincidence of dates. Three things happened more or less simultaneously, by accident,” he said, the third being a high court ruling on Mkhwebane’s application for an interdict halting the suspension process handed down on 10 June.
“By an extraordinary twist of fate, all of these things happened within a few days of each other.
“It is impossible to dispute that the optics look very awkward,” Budlender said, but pleaded that whether or not the president’s decision was undone by bias should be decided on what happened, not how it looked.
The facts included not only that the suspension letter was finalised and put on the president’s desk for signing on 8 June, but that he derived no personal benefit from the suspension as the Phala Phala investigation continued under Mkhwebane’s deputy. He has been compelled to answer the 31 questions she had sent to him two days before her suspension.
“So, nothing changes as far as the president’s position is concerned,” Budlender said.
Here, he was questioned by Justice Mbuyiseli Madlanga, who asked whether it was correct to assess this in hindsight, rather in light of how matters stood on the day Mkhwebane was suspended.
Budlender responded that at the time of suspension, the president had assured her that the Phala Phala investigation would not be interrupted but would be pursued under her deputy.
Hence, hindsight had no greater purpose than simply confirming that at the outset there was no advantage to be gained by Ramaphosa.
The apex court was hearing consolidated applications and appeals stemming from a ruling of the Western Cape high court in September which held that the suspension was hurried, since it was sandwiched between Ramaphosa’s receipt of the questions on Phala Phala and the high court ruling on Mkhwebane’s application for an interdict barring him from suspending her.
In the event, that interdict was denied.
But the high court said of the president’s decision to suspend her: “It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive.”
Budlender said the facts did not support this finding.
“There can be no serious submission that the process to suspend was hasty or hurried. It started on the 18th of March, 2022,” he argued, referring to the date when Ramaphosa signalled to Mkhwebane his intention to suspend her and invited her to make representations as to why he should not do so.
His argument was that it did not matter whether the test was that of double reasonableness, which applies when the need for judicial recusal is weighed, or whether the question was whether a reasonable person would reasonably form an apprehension of bias, as Mkhwebane succeeded on neither test.
“The delay was caused by the president’s accommodation of the requests of advocate Mkhwebane.”
Her submissions were only submitted on 26 May. Budlender said it was not clear when the president’s advisors began drafting the suspension letter but it was done over a number of days.
“That can only mean the drafts started before the 7th of June because that was only one day, not a number of days, before the final draft was submitted … so it follows that the process of preparing the suspension letter actually commenced before advocate Mkhwebane sent the president 31 questions.”
“So, there can be no validity, we respectfully submit, to the high court’s finding that the suspension letter was retaliatory; it was already in process.”
Turning to the high court’s finding of bias, Budlender said it had not been proved. He suggested that the court had fixated on the events of a few days and failed to recognise that Ramaphosa had been confronted well before these with a compelling case for suspending Mkhwebane.
“The president was faced with a situation where a very eminent panel, that was established by the National Assembly, had made devastating findings against advocate Mkhwebane.”
These were summarised in the suspension letter, over two and half pages, and included repeated errors of law of the same kind and substantial prima facie evidence of incompetence.
“It is, with due respect, a shattering account of sustained incompetence and misconduct. That is what the president had before him,” he said, adding that he could therefore not, when the suspension letter landed on his desk on 8 June, turn his back on the matter.
“We submit that it really cannot be disputed that the case for suspension was truly overwhelming.
“I’m sorry to say that the manner in which the public protector has raised matters here has strengthened the case, and if you don’t suspend in a case like this, when will you ever exercise the constitutional power of suspension?” he asked.
“If the case for suspension is overwhelming then that undermines or weakens the suspicion that bias was the reason for the decision.”
This was Budlender’s conclusion but, before reaching it, he asked whether considerations of bias had any place in a legal review of a presidential decision.
He argued that the president’s power to make decisions was inherently a political one and that this was accepted by the drafters of the Constitution.
“If bias does apply to legality, it does have a very attenuated role to a case of this kind.”
He argued that if the president suspended someone because he did not like them, or for ulterior purposes, or on the basis of irrelevant consideration, the courts would set aside the suspension on the basis of legality.
“One would not have to reach the question of bias. So, there is a question as to what additional work bias does.”
He conceded though, in reply to another question from Madlanga, that the political content of his decisions would vary according to context, and that here, in section 194 of the Constitution, which confers on him the power to suspend the public protector, the decision leant closer to an administrative one.
But if the prohibition on bias did form part of a legality review, the question then turned to the applicable test.
Much of the argument in this litigation has concerned this point as Mkhwebane has consistently advanced, well before the Phala Phala scandal broke and she set about investigating it, that Ramaphosa could not suspend her because he had a conflict of interest as the subject of several investigations by her office.
The high court ruling was criticised for delivering a finding of bias, without actually putting the question as to the test.
Budlender said it could not be same as the test for judicial recusal, because the role of the president was a different one and, when taking a decision such as the one on suspending a the public protector, he needed to weigh the social, political and economic consequences as well as that of not taking the step.
“The constitution conferred that power on a politician to make those judgments.”
The issue also arose earlier in the day when Steven Budlender SC argued for the Democratic Alliance.
His view that it did not matter whether it was the test of double reasonableness, which applies when the need for judicial recusal is weighed, or whether the question was whether a reasonable person would reasonably form an apprehension of bias, as Mkhwebane succeeded on neither test.
The test was not a stringent or subjective one, Budlender said, because there were several constraints on the president’s power.
“We submit that those constraints are constraints that the reasonable, thoughtful, well-informed observer would be aware of and therefore they give rise to a conclusion that there is no apprehension of bias in this case.”
Budlender said it was ironic that the opposition party was defending a decision by a president it has strongly criticised in the context of the financial scandal surrounding his game farm.
But it was possible to hold two views at once, he continued, in this case that the president needed to face investigation and that Mkhwebane should be nowhere near that probe.
“It cannot be used as a Trojan horse for the public protector, advocate Mkhwebane, to escape the consequences of her conduct and avoid a suspension, which is so self-evidently justified on the facts of this case.”
Justice Owen Rogers asked an interesting question. Where is provision made in the Constitution for the president to delegate his powers in an instance such as the one before court? The answer is not obvious as even section 90 does not cater for the current situation.
The court also had to deal with the argument, raised on behalf of Mkhwebane by advocate Dali Mpofu, as to whether the high court ruling was concerned only with the common law. Counsel for the president and the official opposition said this was a spurious approach, as the apex court has ruled repeatedly that the common law has been subsumed into the Constitution.
Mpofu raised this argument because the result would be that the high court ruling need not be confirmed by the apex court if it were not one of constitutional invalidity.
This would support Mkhwebane’s bid to be returned to office immediately, though an application to this effect was dismissed by the same high court bench that found Ramaphosa’s decision to suspend was vitiated by bias.
“The fact that we spent so long arguing about it is regrettable, with respect,” Steven Budlender said in reply.
Turning to Rogers’s question, he said it appeared clear that section 90 did not apply.
But, he said, the court need not venture here because there was no case to be made out that the president was in fact biased. But even if there were, he added, it would mean that this would be one of those rare instances where the doctrine of necessity would apply.
“Which means this was all a storm in a teacup because only the president could decide it anyway.”
As a footnote, Budlender Snr said the president had been eager to attach his replies to the 31 questions from Mkhwebane to his affidavit in the litigation, but was asked by the office of the public protector not to do so, lest it compromise the investigation. To date those have only come to light in limited fashion.
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