In her latest bid to prove that President Cyril Ramaphosa is too conflicted to suspend her, public protector Busisiwe Mkhwebane has argued that he risks impeachment if she were to find against him in a fresh investigation prompted by allegations implicating him in “judicial capture”.
The claim was made by Mkhwebane in court papers filed ahead of the hearing on Tuesday (today) and Wednesday of her application for a high court interdict barring Ramaphosa from suspending her, pending the outcome of a parliamentary inquiry into her impeachment for misconduct and incompetence.
She argued that regardless of whether the allegations turn out to be true, the mere fact that they have been put to her in a complaint meant that Ramaphosa was too compromised to exercise his constitutional power in this regard.
“A tainted president cannot suspend me fairly as is required by the rule of law,” Mkhwebane said.
The allegations against Ramaphosa were made in a complaint against him and justice minister Ronald Lamola filed to her office by the Economic Freedom Fighters a month ago.
EFF chief whip Floyd Shivambu alleged in a letter to Mkhwebane that Lamola wrote to former chief justice Mogoeng Mogoeng last July and encouraged him to recommend that Gauteng Judge President Dunstan Mlambo be invited to sit on the constitutional court in an acting capacity.
About a month after Mogoeng’s retirement, Shivambu said, then acting Chief Justice Raymond Zondo made the recommendation and in December Ramaphosa duly saw to Mlambo’s acting appointment at the apex court.
Shivambu said Lamola had meddled as invitations to act were the prerogatives of heads of court, not his to prescribe, but there were other indications too that Mlambo was Ramaphosa and Lamola’s preferred candidate to become chief justice.
The widely held belief that Mlambo had presided over court decisions which “unfairly and illogically favour the Ramaphosa government or faction thereof… would explain the unlawful basis for him being their preferred candidate”, Shivambu wrote.
“The facts are worrisome and very much indicative of the view strongly held by me and others that Minister Lamola and/or President Ramaphosa were involved in an underhand, unlawful and unethical operation aimed at judicial capture and the manipulation of the rules to ensure that Mlambo JP gained an unfair advantage when, but for their actions, he would not have otherwise gained, in the selection process for chief justice.”
The EFF’s claims are not new. Party leader Julius Malema made similar allegations when the Judicial Service Commission (JSC) interviewed the candidates for chief justice. But they were only relayed to Mkhwebane as a formal complaint on 25 March, eight days after Ramaphosa asked her to submit reasons why he should not suspend her.
She responded by filing court papers submitting that, because he remains the subject of several investigations by her office, he is disqualified from acting against her “due to the fact that there is a conflict of interest, or at best for him, the risk thereof”.
In his replying affidavit, Ramaphosa said she failed to establish any conflict since his private interests were not at issue in any of the past or present investigations mentioned. In his later papers, after Mkhwebane raised the details of the EFF complaint, he denied that he had any hand in Mlambo’s acting appointment or that he had ever been involved in machinations around the judiciary.
“Nothing could be further from the truth,” the president said.
Mkhwebane has responded by saying whether the complaint was founded or not was immaterial; the mere fact that it was made and would be investigated contributed to the apprehension that Ramaphosa would be motivated by bias in acting against her.
“Each investigation might alone provide an incentive for or at least the risk of the president not bringing a neutral mind to the question of my proposed suspension which may benefit him if the said investigation is potentially frustrated or even unduly delayed due to my absence,” she said.
Ramaphosa’s counter-argument is that an investigation alone did not constitute a conflict of interest. Had this been the case, he said, Mkhwebane could conveniently shield herself against impeachment by investigating anybody involved in the process.
The investigations to which she refers in her papers include those into remarks that suggested Ramaphosa knew about the abuse of public funds by governing party politicians and into donations to his campaign to become president of the ruling party.
Her findings that Ramaphosa misled parliament about a Bosasa donation to the campaign were struck down by the high court and her appeal to the ruling was dismissed in a scathing judgment by the constitutional court. Her subsequent rescission application was dismissed, and with no further option open to her in court, Mkhwebane has since filed an extraordinary misconduct complaint with the JSC against former constitutional court justice Chris Jafta, who penned the majority ruling.
In her high court papers, she claims that she may yet be vindicated on her findings against Ramaphosa on funding to the so-called CR17 campaign, because of the EFF’s pending appeal against the dismissal of an application to have documents concerning donations to the campaign unsealed.
The high court held that the public protector had exceeded her powers in her investigation into the president’s campaign funding, which also saw her conclude that he should be investigated for money-laundering.
But Mkhwebane argued in this application that should the EFF prevail on appeal, financial conduct may come to light which could reverse the Bosasa rulings on the issue of her jurisdiction.
Ramaphosa pointed out that this was far-fetched and the constitutional court’s pronouncement on the matter was final.
His latest papers reply to an affidavit filed by United Democratic Movement leader Bantu Holomisa on behalf of his party and the African Transformation Movement in support of Mkhwebane’s argument that Ramaphosa could not suspend her because the inquiry into her impeachment had not formally begun.
They contend that the “common understanding” among members of the multiparty committee was that though their work had commenced, and evidence leaders were appointed, the inquiry would only begin on 4 May.
The president said it was his understanding, based on communication from parliament, that the legal threshold in section 194(3) of the Constitution, under which he may suspend the public protector at “any time after the start of proceedings of a committee of the National Assembly for the removal of that person”, had been cleared.
The speaker had, on 10 March in correspondence to him, referred to “the resumption of proceedings of the committee” after it was “paused” pending the outcome of Mkhwebane’s separate, only partially successful challenge to the rules governing the inquiry. She has since filed an application for rescission on this constitutional court judgment, which paved the way for the impeachment inquiry to proceed, saying it contained patent errors.
Mkhwebane countered that the high court could settle the matter of the commencement date simply by asking the president and his co-respondents to give the exact day when, in their view, the committee began its work.
“The opposing respondents all contradict each other on this crucial question.”
She accused the speaker and the president of having manipulated their communication to confuse the future and past tense, and said this “enthusiasm” on Ramaphosa’s part to suspend her before the law allowed only served to heighten her apprehension of bias on his part.