On the first day of the hearings of the section 194 inquiry into her fitness to hold office, suspended public protector Busiswe Mkhwebane’s lawyer told MPs she was treated unfairly by parliament and that this had prompted her suspension by President Cyril Ramaphosa on 9 June.
Advocate Dali Mpofu sought to argue that the suspension — which Mkhwebane is preparing to challenge in court — was separately linked to the legislature’s actions and that if the president could be faulted, the inquiry that may culminate in her impeachment was flawed too.
Mpofu said when speaker Nosiviwe Mapisa-Nqakula wrote to Ramaphosa in March to say that the inquiry was continuing — when on his argument it technically had not commenced — it was with the sole aim of nudging him to move to suspend Mkhwebane.
She has argued in litigation earlier this year, after Ramaphosa requested reasons he should not suspend her, that he was acting prematurely because, by law, he was only empowered to act once the committee had commenced its work. On her reading, it had not.
The president’s decision to suspend her, Mpofu argued on Monday, had had severe consequences for a public servant whose dignity the Constitution enjoined parliament to protect, in the same manner it had a duty to protect the judiciary,
This was evidenced in the fact a two-thirds majority in the national assembly was required to move the incumbent because those who drafted the Constitution intended to set a high threshold for impeachment.
“She gets suspended unlawfully, she is unable to prepare for this process, her emails were blocked until last Friday until we protested,” Mpofu said, stressing that it had compromised her as prepared to answer to charges of misconduct and incompetence.
He hammered the point that suspension may only follow after the start of the proceedings of a committee of the national assembly for the removal of that person.
Committee chairperson Richard Dyanti insisted that the inquiry had begun in February, once the legal challenge to the rules governing the section 194 process had been adjudicated by the constitutional court, and tried to cut short Mpofu’s protest about the legality of the suspension by saying it was not the doing of the committee.
“So to say that the suspension has nothing to do with this committee is with the greatest respect a fallacy, because it does,” Mpofu countered. “All these nice arguments are going to be aired on the 25th and the 26th, as you know chairperson, of this month in about two weeks’ time in the high court in Cape Town.”
Dyanti again interrupted him to say that the arguments on the timing of the suspension belonged before the court and not in the parliamentary inquiry.
“We have no role in the suspension of any of the heads of this institution. It is clearly stipulated whose role that is,” he said.
Mpofu replied: “I have listened to that being said repeatedly. It is wrong. You have a duty to ensure fairness, secondly this committee is mentioned in the suspending clause. It is just absurd, this notion that this committee whose activities trigger the suspension has nothing to do with the suspension.”
He said it was obviously the president who had pulled the trigger on Mkhwebane’s suspension, “so I’m only addressing it to you only insofar as it affects your obligation to have a process that is fair and reasonable”.
It was not only unfair but reeked of bias, he added, reiterating Mkhwebane’s argument that Ramaphosa could not suspend her because he was conflicted because he was the subject of several investigations by her office.
She had invoked the same argument when she sought to interdict Ramaphosa from suspending her, but the Western Cape high court disagreed in a ruling delivered on June 10, the day after the suspension.
But for Mkhwebane’s supporters and the president’s critics, the argument has gained more political currency because Ramaphosa moved to suspend her the day after she confirmed that her office would be investigating complaints filed following the revelation that foreign currency was stolen from his Limpopo game farm.
“The person who did that suspension is a person who is being investigated by the public protector and our courts have said that that is bias or potential bias or a breach of section 96 (2)(b) of the Constitution,” Mpofu said.
He added that the nature of the complaints were serious, saying the president faced “six life sentences” in these investigations, before arguing that any conflict too pointed to parliament forsaking its obligations.
“If there is a conflict of interest, it is your business, if there is a lack of hearing, it is your business, if there is unfairness of any kind, it is your business.”
He said Mkhwebane would plead that any eventual vote on removing her from office should be conducted by secret ballot — something that could save her given the deep divisions in the ruling party.
“At a certain stage we will assert very strongly that the decisions in this process must be taken by secret ballot, more particularly the decision, if we get to the national assembly stage, and I’ll explain in relation to the rules of natural justice.”
The committee heard arguments about whether the scope of its inquiry should be confined to the prima facie case established in a preliminary investigation by an independent panel in 2021, or the wider grounds set out in an initial motion by the Democratic Alliance calling for her removal.
The panel found that multiple court rulings handed down in review of Mkhwebane’s findings pointed to a flawed understanding of the law and her mandate, including the need to be impartial.
This included the court ruling on her report on the South African Reserve Bank’s loan to Bankorp. Mpofu said the committee needed to seek legal advice about whether Mkhwebane can answer questions on this particular subject because she is standing trial for perjury for statements that she made during the judicial review on the matter.
Mkhwebane has spent more than R67-million in public funds on litigation attempting to avert suspension and impeachment. Last week acting public protector Kholeka Gcaleka closed the taps, saying the office would only fund Mkhwebane’s representation before the section 194 committee and she would have to pay for a challenge to the 10 June ruling.