Suspended Public Protector Busisiswe Mkhwebane. (Oupa Nkosi)
The Western Cape high court has set aside President Cyril Ramaphosa’s decision to suspend Busisiwe Mkhwebane\ as public protector as unlawful because it could reasonably be seen as retaliation for her decision to investigate a complaint against him flowing from the theft at his game farm.
The court said the hurried nature of the suspension, sandwiched between the announcement by Mkhwebane of the probe and a ruling of the same court on her application for an interdict barring him from suspending her, led to the conclusion that his decision may have been retaliatory and hence unlawful
“It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive,” reads the ruling by judges James Lekhuleni, Matthew Francis and Lister Nuku.
“In our view the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant.”
Hence, the president found himself in breach of the constitution which demands that the exercise of executive power must comply with the doctrine of legality.
The court noted that the ruling handed down the day after Mkhwebane’s suspension rejected her submission that a conflict of interest, rooted in the fact that her office was investigating various complaints against him, disqualified him from exercising his constitutional power in this regard.
But subsequent to that case having been heard by the court, two more complaints against Ramaphosa were brought to her office – one related to Glencore and another to the theft of foreign currency from his Limpopo game farm.
These were respectively lodged by United Democratic Movement leader Bantu Holomisa and African Transformation Movement leader Vuyo Zungula. On the first, the court noted, nothing was done by the public protector that would even make Ramaphosa aware of the complaint, but the same does not apply to the second.
“The Phala Phala investigation, however, stands on a different footing.”
It was common cause, the court said, that he had by that time – on 7 June – received a letter from the public protector, to which he was warned to respond within 14 days.
Ramaphosa had argued that her suspension could not be read as retaliation for the investigation because her probe of the Phala Phala complaint began long after the suspension process began, when he had written to her on 17 March to ask for reasons why he should not take this step.
The court heard extensive argument about what the standard should be for reasonable apprehension of bias, with counsel for the president and the Democratic Alliance arguing that it should be set as high as that of recusal of judges.
The court said it was not entirely satisfied that this was so.
“Even on that standard, there are, in our view, a number of reasons why the president would reasonably be perceived to be unable to bring to bear an impartial mind when considering whether or not to suspend the applicant.”
It noted that Ramaphosa, at the moment he ordered Mkhwebane’s suspension, was sitting with a letter from her with a long list of questions about what had happened at his farm.
“To suggest that such a suspension would not have any effect of delaying the course of the investigation would be a difficult proposition to convincingly sustain.”
Mkhwebane had made public her decision to investigate the president for, as Zungula alleged, a breach of the executive code of ethics stemming from concealing foreign currency.
“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,” the court held.
“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 expansive nature of the questions, about an event that had happened more than two years prior, might well have led him to think “there she goes again”, and to conclude he may be better off with anybody but her leading the investigation, the court added.
Mkhwebane responded to the suspension by returning to court to challenge its legitimacy.
The court agreed that her application was urgent, noting that the matter raised weighty issues, and that if she were correct in asserting that her suspension was unlawful, “this perforce places this matter among those matters which may impact on the rule of law”.
She had also argued that Ramaphosa found himself in contempt of court by suspending her while the court ruling on her application for an interdict barring him from doing so was pending.
His counsel countered that he had no indication when the ruling was due, but she disputed this, saying the court had in fact indicated that it would be delivered within a week.
Ramaphosa’s lawyers told the court he signed the suspension letter before he received notice, on the same day, that the court ruling would be handed down the next day.
But the court ruled that, when the sequence of events that unfolded between 7 and 10 June are objectively examined, “it is irresistible to conclude that the decision of the president was improper”.
However it found that Mkhwebane failed to satisfy the test to show the timing of the decision to suspend her was designed to frustrate the enforcement of a court order in her favour and that he was therefore in contempt of court.
The court also rejected her twin argument that the president had breached section 165 of the constitution by undermining the authority of the judiciary. In order to meet the test here, she needed to prove contempt, and hence this leg of her argument failed too.
The court decided not to set aside Mkhwebane’s suspension, retrospectively as, it said, this would undo the decisions acting public protector Kholeka Gcaleka has taken in the past two months.
However, its remedy is still regarded as problematic, sources in the legal fraternity said on Friday, as an order of the high court declaring an executive decision unconstitutional needs to be confirmed by the apex court to take effect.