Suspended Public Protector Busiswe Mkhwebane had requested that President Ramaphosa be summoned to answer questions about her 9 June suspension and other matters before the courts.

Advocate Dali Mpofu.(Photo: Gallo Images / Beeld / Deaan Vivie)

Parliament’s legal services informed the committee that Ramaphosa’s version in relation to the complaints, as well as his subsequent challenge to the Public Protector’s CR17 report, formed part of the court record and was contained in sworn affidavits.

Mkhwebane’s legal representative, advocate Dali Mpofu, has been otherwise engaged this week, defending Jacob Zuma at the Supreme Court of Appeal hearing into the former president’s medical parole.

On Tuesday, Section 194 inquiry chair Qubudile Dyantyi and the committee — on advice from legal services — rejected Mkhwebane’s request that President Ramaphosa be called.

The committee heard that the oversight process related to the conduct of Mkhwebane, and while Parliament had oversight over the President, the committee was not mandated to conduct this oversight.

It had “a singular task” of establishing the truth of the charges against Mkhwebane and reporting back to the National Assembly. The National Assembly would then vote on impeachment.

Legal services advised that Ramaphsosa — as the subject of Mkhwebane’s CR17 report — was not involved in the investigation, drafting or issuing of the report, and it was this process that the committee should scrutinise.

President Cyril Ramaphosa. (Photo: Deon Ferreira)

The current oversight of the 194 inquiry related to the conduct of Mkhwebane, and the President might have to perform an executive function after the Parliamentary process.

For this reason, Ramaphosa should not be “lightly” drawn into any preliminary stages, the lawyers advised.

While there was no legal impediment to the committee summonsing the President or any other person to appear before it, it may only do so in prescribed circumstances.

These were that the person summoned was able to provide the committee with facts and information that would enable it to determine the veracity of the charges, and that the information sought was within the personal knowledge of the witness and not through other restrictive means.

In the event that the committee was of the view that Ramaphosa should be called, legal services advised that this be done in the “spirit of cooperative governance” and before any process to summons.

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The committee was neither empowered nor seized with any inquiry into the suspension of the Public Protector which, in terms of section 194 (3) of the Constitution, was the prerogative of the President.

Finish and klaar, so to speak.

The appropriate forum then, to deal with this, remained the courts.

Mkhwebane had been given a long rope by the President prior to her suspension.

In March 2022, after confirmation by the Speaker of the National Assembly that the Section 194 committee had announced it was to continue with its work, Ramaphosa requested representations from Mkhwebane as to why she should not be suspended.

She responded in May, highlighting her view that the President was conflicted. This came as she was investigating him in connection with Bosasa, a complaint of “judicial capture” lodged by the EFF’s Floyd Shivambu, and a statement Ramaphosa had made at an ANC meeting (and later leaked) revealing he knew the ANC had used taxpayers’ money to fight its battles.

On 8 June, Mkhwebane added #Couchgate to her bucket list after the African Transformation Movement’s Vuyo Zungula unsurprisingly lodged a complaint with her office against Ramaphosa. This related to the 2020 theft at the President’s Phala Phala game farm, an alleged extrajudicial investigation and the apparent cover-up of the theft of foreign currency.

The President announced in June that Mkhwebane would remain suspended until the Section 194 process had been completed.

“President Ramaphosa has fulfilled his obligation to provide Adv Mkhwebane a fair hearing by according her sufficient time and opportunity to make submissions,” the statement from the President’s office read.

On Tuesday Dyanti concluded: “We are not responding in an affirmative way to the Public Protector’s team and in fact, on behalf of this committee listening to this legal opinion, if there’s a letter that we must write to the Public Protector’s legal team, its that the subpoena for the President is declined. That’s the summary based on the arguments listed there on that particular legal opinion.”

The hearing will continue on Wednesday when further witnesses are expected to testify. DM