President Cyril Ramaphosa on Thursday suspended public protector Busisiwe Mkhwebane pending the outcome of the parliamentary inquiry in which she risks impeachment for misconduct.
In a statement, the president said he had taken the decision in terms of section 194(3)(a) of the Constitution, which accords him the power to suspend the head of a chapter nine institution “at any time after the start of proceedings by a committee of the National Assembly for (their) removal”.
Ramaphosa wrote to Mkhwebane in mid-March to ask that she give reasons why he should not suspend her.
She responded with the legally-fraught demand that he withdraw the letter, because he was conflicted given that he was the subject of a raft of investigations conducted by her office.
Litigation ensued, with Mkhwebane asking the Western Cape high court to interdict the president from suspending her and parliament from proceeding with the inquiry, given that she was seeking the rescission of a constitutional court ruling that paved the way for it to commence.
Matters took a dramatic turn when the court had to suspend the hearing of her application when counsel for parliament received an unsolicited message from self-styled legal analyst Ismael Abramjee, saying he had it on good authority that the apex court had decided not to entertain her rescission bid and would inform parties within days.
Mkhwebane said this pointed to a leak and launched an investigation, in the course of which she issued subpoenas against justices Jody Kollapen and Dunstan Mlambo. She withdrew these after the General Council of the Bar warned that it constituted an abuse of her powers and attack on the independence of the judiciary and threatened her with urgent legal action.
Although Abramjee’s text message may attest to nothing more than meddlesome self-importance, it has caused discomfort for the judiciary. Mkhwebane last week announced that she was closing her investigation because it “stretches into the judicial arena”, but nonetheless disclosed that she had obtained cell phone records that reflected 18 phone calls between Kollapen and Abramjee and one between Abramjee and Mlambo.
Both justices have said the calls were innocuous and not related to their work at the constitutional court. The court has said there was no contact between its administrators and Abramjee, who denied the same, saying he was acting on nothing more than his intuition.
It was unanimous among legal commentators that the court would not hear Mkhwebane’s rescission application, a decision it finally announced in early May. In an unprecedented step, she has launched another, asking the court to rescind its decision not to rescind and sought to use this to protract the Western Cape litigation, and in doing so delay the impeachment inquiry.
Parliament has taken the view that nothing prevents it from proceeding, and the section 194 committee handling the inquiry will meet on Friday.
Among MPs from the ruling ANC, whose numbers will be decisive in a national assembly vote on impeachment should the committee recommend that Mkhwebane be removed from office, resolve to act against her is palpable.
It means that her attempt to impugn Kollapen, Mlambo and the constitutional court could be her parting shot after five and half years in office in which she has consistently delivered findings flawed in law and steeped in factional politics.
Mkhwebane responded to the president’s announcement suspending her by posting on Twitter: “Do not be deflected #glencore and #farmgate aluta continua” — a reference to the political storm he is weathering over the theft of foreign currency at his game farm.