LAWFARE
High court challenge is a struggle for the keys to the Kingdom of the Office of the Public Protector
Legal intervention upon intervention, that is the way things are progressing in the ongoing battle over the Office of the Public Protector.
Advocate Dali Mpofu, one of the finest deployers of the Stalingrad legal strategy, has accused acting Public Protector Kholeka Gcaleka, as well as the Democratic Alliance and President Cyril Ramaphosa, of “wasting time” in court.
After the Western Cape High Court ruled on Friday, 9 September that Ramaphosa’s suspension of Busisiwe Mkhwebane be set aside as it was possibly tainted by bias, a literal struggle for the keys to the Kingdom of the Office of the Public Protector has been waged behind the scenes.
This Friday, 16 September, the Western Cape High Court began hearing Mpofu and Mkhwebane’s much-anticipated application to have its ruling immediately enforced regardless of legal challenges brought by the DA and the President.
But, what should have been, according to Mpofu, a quick in and out, began to unravel into a familiar legal marathon. This came after Gcaleka’s application to intervene in the matter as well as Ramaphosa’s opposition to Mkhwebane’s urgent application.
Mkhwebane has since taken ill and did not attend Friday’s hearing nor the Section 194 inquiry earlier this week. Her sick note, released by Mpofu on Twitter, indicates she is in Pretoria.
Advocate Tim Bruinders, representing Gcaleka, told the court the acting Public Protector wished to place the “true facts” before it and did not want to enter into any debate about Mkhwebane’s suspension.
Gcaleka argued that her investigation into the break-in and the stash of cash stolen from the President’s Phala Phala farm has not been delayed due to Mkhwebane’s suspension.
‘Irrelevant and vexatious’
Mpofu charged that he was “perplexed and puzzled” by the application, that “now we have to waste time before we deal with the real issue which is simple”.
“We were hoping to get in and out,” said Mpofu, adding that “what should have been a quick matter will now be dragged out”.
He added that the Gcaleka’s affidavit “with all her tables and charts” as well as the DA’s 400-page whopper replete with evidence from Mkhwebane’s Section 194 inquiry, were all designed to keep Mkhwebane out of office.
Read more in Daily Maverick: “Ramaphosa vs Mkhwebane – Nkandla ‘will look like a picnic’, Mpofu warns inquiry as lawfare escalates”
“Her [Gcaleka] only interest in this case is to stay in that position for as long as possible,” Mpofu said.
He added that Gcaleka’s application and affidavit to the court were “irrelevant and vexatious” and that she lacked locus standi.
Mpofu did, however, set out in greater detail the haste with which Mkhwebane had attempted to wing her way to Pretoria after the judgment in Cape Town last week.
Mkhwebane, said Mpofu, shortly after the ruling at 2.30pm, had sent a message to Gcaleka “thanking her for holding the fort… all these nice things… then she WhasApped the CEO to say she would like to come to the office tomorrow and could he make security arrangements to get the keys.”
The fact that the CEO and security had “understood” what “the court had done” on Friday, argued Mpofu, was clear enough. They knew, he said, that Mkhwebane was no longer suspended.
“If that judgment had been at 7am, we all know what would have happened,” Mpofu told the court.
Visit Daily Maverick’s home page for more news, analysis and investigations
Truth is, at 8pm on Friday, the DA as well as the President applied directly to the Constitutional Court for appeal. This put a legal brake on Mkhwebane’s plans to pucker the hot seat.
Represented by assistant state attorney Mark Owen, Ramaphosa’s affidavit on the matter to the court contends that there would be “grave and far-reaching harm to the public interest and the constitutional project” should Mkhwebane return to work.
Her application for immediate reinstatement was inappropriate and had no prospect of success, Owen set out. Ramaphosa’s decision to suspend Mkhwebane was taken in terms of Section 194(3)(a) of the Constitution, meaning this must first be confirmed by the Constitutional Court.
Mkhwebane, in court papers, has said she would be irreparably harmed should she not return to her position and dig in, in particular, into “the most urgent issue of the Phala Phala investigation”.
Read more in Daily Maverick: “Political lawfare between Ramaphosa and Mkhwebane reaches new crescendo”
Read more in Daily Maverick: “Zuma praise singers pitched for consultancy work with Mkhwebane, probe hears”
Owen and the President argued that the mere existence of the Phala Phala investigation did not mean any exceptional circumstances existed warranting Mkhwebane’s rush back to work. There was no evidence brought to show that the investigation had been impeded in her absence.
Mpofu said on Friday that Ramaphosa’s suspension of Mkhwebane had been “the most exceptional thing to happen” and that the high court had found that the President had abused his powers.
Asked by Judge Lister Nuku why Mkhwebane was not prepared to wait for the Constitutional Court appeal to be decided, Mpofu said she was “a victim of the most egregious abuse of power in this Republic” and needed to be reinstated post-haste.
The hearing continues between rolling blackouts. DM
Well… given a taste of their own medicine they don’t like it. We all wish that the matter before parliament should be an quick in and out without increasing Stalingrad challenges.
I believe that the facts of the matter are that Phalala Phalala aside, she has no place in that office. The evidence against her especially being involved in and with SSA makes it imperative for her to be kept out of the office. I doubt with her legal skills or lack of, even the RET would engage her to do any legal work. Give her the boot then the bar should give her another boot.
The substantive issue of her competence to hold that office seems to be lost. The prima facie evidence shows that her appointment by Yertle the Turtle was flawed from the outset. Let’s get her deputy in as the principle. She is re-establishing the standard.
As a member of the public, whom this Public Protector is supposed to be protecting from the excesses of the State, there is no way I would want her back in office!
I have read enough and seen it confirmed in the current parliamentary process to remove her, to know that she is neither comptetent nor impartial in order to fulfil the job she was appointed to, and should be removed poste-haste!
Someone should inform dilly Dali that the current PP is not the ‘victim’ of an “abuse of power” … but is in fact the abuser of power, by her continued efforts to occupy a position, which several uncontested judgements against her have found ! CR should have removed her a long time ago … instead of waiting till the farmgate scandal broke.