AGE OF ACCOUNTABILITY
Mkhwebane’s suspension lawful and rational, says ConCourt in latest blow for outgoing Public Protector
The Constitutional Court has found that President Cyril Ramaphosa had ‘justifications for a precautionary suspension’ of Public Protector Busisiwe Mkhwebane, as the ConCourt itself made ‘gravely adverse credibility findings’ against her.
The Constitutional Court has found against Public Protector Busisiwe Mkhwebane in a consolidated judgment on three cases involving her suspension. The court also slapped Mkhwebane with a personal costs order in relation to the case she brought before the court, meaning she will pay a portion of the overall court fees in her personal capacity.
The judgment emanates from cases heard in the Western Cape division of the High Court which were appealed against by President Cyril Ramaphosa, the Democratic Alliance and by Mkhwebane herself. The Speaker of Parliament was also cited in the initial case, along with the chairperson of the Section 194 committee, Richard Dyantyi, and all the political parties represented in the National Assembly.
Before handing down judgment, Deputy Chief Justice Mandisa Maya noted the complex background that led to the three cases coming before the court.
In February 2022, Parliament resolved to proceed with considering a motion to remove Mkhwebane by setting up a panel in terms of Section 194 of the Constitution. The process was previously halted by a legal challenge in which the ConCourt ruled that a leader of a Chapter 9 institution could have legal representation during impeachment proceedings in Parliament.
In March 2022, Ramaphosa informed Mkhwebane of his intention to suspend her and asked her to provide reasons why he should not do so. Mkhwebane argued that there were “multiple instances of conflict of interest, which precluded the President from personally suspending her”.
“The alleged conflicts of interest included various investigations that had been recently conducted or were currently being investigated by the Office of the Public Protector against the President. In response, the President, through the State Attorney, informed the Public Protector that he would act personally and did not consider himself to be disqualified from doing so,” Maya noted in the judgment.
Three months later, Ramaphosa suspended Mkhwebane. She took the decision on review, attacking the timing of his decision and saying he had a bias due to her office investigating him.
Mkhwebane argued that she had received a number of complaints relating to Ramaphosa, including one about the CR17 investigation which related to campaign funds used in his 2017 bid for election as ANC president, and an investigation into funds kept at his Phala Phala farm, which would result in him acting with bias.
The high court agreed with Mkhwebane on this ground, finding that there was “bias or a reasonable apprehension of bias on the part of the President, which disqualified him from personally exercising the power to suspend her”.
Read more in Daily Maverick: High Court was guilty of judicial overreach when overturning Ramaphosa’s suspension of Public Protector
“The High Court took into account that the Public Protector was previously found by this Court to have not had an open and enquiring mind when investigating the President and that she was unduly suspicious of him. The President had to contend with responding, on fairly short notice, to the expansive 31 questions on an incident which occurred two years previously,” Justice Maya noted.
“Suspending the Public Protector would, so the Full Court reasoned, be a way of delaying the investigation into the Phala Phala complaint. The President, in the Full Court’s view, might well have concluded that ‘he was better off with any person but (Mkhwebane)’. The (high) court further found the chain of events leading to the suspension significant,” she continued.
However, in the unanimous judgment, the ConCourt found that the high court’s reasoning was flawed. The DA and Ramaphosa had both argued that the decision to suspend Mkhwebane was not premature, saying that Parliament had already started its inquiry into her conduct in March 2023.
“The power that comes with public office comes with responsibilities, and public office-bearers who occupy positions of high authority must be held accountable in the exercise of their powers. The Constitution has a built-in checks and balances mechanism for a Public Protector who does not live up to the responsibilities that come with her office” Maya said.
She added that Section 194 of the Constitution lays out the framework for the accountability of the Public Protector.
“These provisions vest the President with the power to impose a precautionary suspension to protect and preserve the office during an enquiry. In deciding whether to suspend, he is required to consider the need to uphold the integrity of the office, the need to prevent interference in the disciplinary enquiry and the need to allow the incumbent to defend themselves.”
Maya added that “justifications for a precautionary suspension existed in this matter” as the ConCourt had made “gravely adverse credibility findings against” Mkhwebane.
“Moreover, an independent panel found prima facie evidence of incompetence on her part based on a number of repeated instances, including what it described as grossly overreaching and exceeding the bounds of her powers in terms of the Constitution by unconstitutionally trenching on Parliament’s exclusive authority when she directed it to initiate a process to amend the Constitution,” said Justice Maya.
“The independent panel also found prima facie evidence of misconduct in the sense of an intentional or grossly negligent failure to meet the standard of behaviour expected of a holder of public office in a number of instances, including her insistence on compliance with a subpoena and bullying the targets of a moot investigation despite a court challenge having been instituted.
“The independent panel concluded that the charges required investigation and could, if established, lead to the removal of the Public Protector,” Justice Maya said.
The court also found that the suspension eliminated the risk of Mkhwebane interfering in the Section 194 inquiry by ensuring she would not have access to records or conceal documents.
“The cumulative effect of all these factors makes clear that a decision to suspend the Public Protector was, on the merits, the only possible rational outcome. At any rate, it cannot be said that the President’s decision to suspend her was irrational, even if there were other rational courses open to him,” she said.
The court added that work in the Public Protector’s office could continue under the guidance of deputy Public Protector, advocate Kholeka Gcaleka.
The ConCourt also found the mere risk of conflict of interest would not have stopped Ramaphosa from acting against Mkhwebane.
Justice Maya said the court considered the “essential elements of a conflict between official responsibilities and private interests” which are the official responsibilities, private interests and the risk of a conflict between these two issues, along with the conduct that exposes the official to that risk.
“The mere fact that the Public Protector is investigating him cannot create a reasonable apprehension of bias or, on the approach I take, expose him to a risk of conflict between his official responsibilities and private interests.
“As the DA rightly argues, the suspension of the Public Protector is not a power that the President can exercise without safeguards; it is a tightly constrained power with no practical impact on investigations by the Office of the Public Protector,” Justice Maya said.
She added that even with Mkhwebane’s suspension, the investigations into Ramaphosa would continue.
“The Acting Public Protector, who has not been shown to be incompetent or to lack independence, continued with the investigation diligently and insisted on a response to the 31 questions posed by the Public Protector to the President, which were then furnished,” she said.
Justice Maya said there was no evidence of any “hurried” or “retaliatory” conduct by Ramaphosa, who corresponded with Mkhwebane for several weeks before deciding to suspend her.
“But for the late emergence of the Phala Phala complaint, nobody could have suggested anything sinister about the timeline,” she said.
Read more in Daily Maverick: Digging into acting Public Protector’s perplexing lack of curiosity about pivotal Phala Phala facts
The court found that there was no need to make a cost order against Mkhwebane in relation to the Ramaphosa and DA cases. However, it said Mkhwebane’s own case was an “unnecessary application” and ordered her to pay the costs of this application in her personal capacity.
Mkhwebane’s term is due to end in October and Parliament has already begun searching for her replacement.
The inquiry into her conduct has stalled over the issue of her legal representation. Parliament intends to hold interviews for the shortlisted candidate in August. DM