SUSPENDED Public Protector (PP) Busisiwe Mkhwebane has given President Cyril Ramaphosa to reverse her suspension or face a legal battle.
In a strongly worded letter to the president in which she challenged her suspension, Mkhwebane said that Ramaphosa ignored crucial submissions that she made to him.
“Your decision to suspend me, as you put it, ‘pending the finalisation of the process taking place in the National Assembly’ is decidedly unlawful and invalid in that, to your knowledge, your power to do so in terms of section 194(3)(a) is not lawfully triggered by the taking place of the process but only arises ‘at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person’.”
“Alternatively, I hereby squarely challenge you to pronounce when and on what occasion you may allege that the proceedings envisaged in the section had indeed started. Your conduct is ultra vires and illegal,” read the letter.
“You have notably not commented on whether or not, despite your ‘view’, there may be the risk of a conflict of interest, as contemplated in section 96(2)(b) of the constitution, which is binding upon you as a member of the cabinet.”
Mkhwebane said that section of the constitution prohibited the president from being the suspending authority in her matter.
“The conflict or risk thereof arises because the six investigations in question, including the latest matters of Glencore and your Phala Phala farm, all involve serious and impeachable offences. That brings about the risk and/or reasonable apprehension on my part that you will not act impartially. That perception is based on the principles which were articulated in the matter of The President versus The Public Protector and Others 2018 (2) SA 100 GP, in which the court held that your immediate predecessor, President Jacob Zuma, was disqualified from appointing the state capture commission of inquiry on the basis of, inter alia, a perceived conflict of interest and/or the risk thereof.”
“The same principle applies to you. Contrary to the part A judgment, you are not a beneficiary of the presumption of impartiality. That presumption only applies to judges and not other public officials in the legislature or executive,” Mkhwebane said.
Mkhwebane also rejected the speculative “reason” that related to the public protector purportedly “immunising” herself by initiating investigations against individuals she considered to be a threat.
“You are no threat to me. More importantly and to your specific knowledge, all the six investigations in question were not initiated by me but came as complaints from third parties. The pending litigation regarding the unsealing of documents in the Bosasa matter is likely to have an impact on whether or not the public protector has jurisdiction over the CR17 funding matter, depending on the identities of the donors and the extent of your direct involvement. In any event, even if the Bosasa matter were to be discounted or totally eliminated from the equation, the numerous conflicts of interest related to the remaining five investigations remain,” read her letter.
“As you clearly believe in respect of calls for you to step aside due to the much more serious allegations of criminal conduct levelled against you, in respect of which there is seemingly more than prima facie evidence, the availability of persons to whom the work of the office of the president can be delegated is not sufficient reason for suspending a person or forcing them to step aside from their current responsibilities. Your argument in this regard is therefore inconsistent and unsustainable if it can only be applied to others but not to you, with all due respect.”
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