That the Public Protector, Busisiwe Mkhwebane, is among the most unpopular public office-bearers in South Africa is surely obvious. Her reputation has been hard-earned, in significant part, as a result of the plethora of cases in which she has been roundly criticised by the courts. Still, this does not detract from her entitlement to the equal benefit of the rule of law.  

Although it might be tempting for many to be critical of a judgment that found in her favour, the only basis for legitimate criticism of such a judgment would be if it fails the test of a rigorous application of the relevant law to the facts of the case. 

It is through this prism that the judgment delivered by a Full Bench of the Western Cape High Court which held that the decision of the President to suspend the Public Protector was invalid must be analysed.

The chronology which led to this order is important. As has become her practice, the Public Protector engaged in serial litigation to prevent Parliament from proceeding to establish a committee under section 194 of the Constitution to consider her impeachment. 

Notwithstanding yet another attempt to seek rescission of an adverse judgment delivered by the Constitutional Court, which confirmed the validity of the process save for the right of the Public Protector to be legally represented at the hearing, the Section 194 committee began to discharge its mandate. It held a meeting on 22 February that resolved to proceed with the consideration of the motion of the removal of the Public Protector.

On 17 March, President Cyril Ramaphosa wrote to the Public Protector inviting her to provide him with reasons why he should not suspend her pending the finalisation of the work of the Section 194 committee. It appears that the President’s insight into the Section 194 process stems from a letter sent to him by the Speaker of Parliament on 10 March. 

On 22 March, advocate Mkhwebane’s attorneys wrote to the President informing him that there were multiple instances of conflicts of interest which precluded him from suspending the Public Protector, including various investigations which had recently been conducted by the office of the Public Protector against the President.

A day later, the Office of the President, through the State Attorney, responded, stating that the President would act personally in this matter and did not consider himself to be disqualified. On 1 April, the Public Protector launched a further application, the first part of which was aimed at securing interim relief that would prohibit the Section 194 committee from continuing its work and preventing the President from taking any steps to suspend her pending a further review which had been brought to declare, inter alia, the President’s conduct as being irrational, unconstitutional and invalid. 

Phala Phala investigation

On 7 June, the Public Protector addressed a letter to the President informing him of an investigation into the Phala Phala farm episode. The next day she announced that she had decided to launch a formal investigation into this case. 

On 9 June 2002, the President suspended the Public Protector in terms of section 2A (7) of the Public Protector Act and as a result, the Deputy Public Protector assumed performance of the functions of the Office of the Public Protector.

One day later, on 10 June, a Full Bench of the Western Cape High Court refused the interim relief that had been sought by the Public Protector.

Following this chronology, the application for the additional relief that the Public Protector had sought was amended to include a prayer that the President’s action in suspending her was premature and/or ultra vires because the Section 194 committee had not begun its work as at 17 March or on 9 June.

She further contended that the decision to suspend her was tainted by an actual or reasonable apprehension of bias and conflicts of interest emanating from the different investigations that had been launched by the Office of the Public Protector.

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In dealing with this case, judges Lister Nuku, Matthew Francis and James Lekhuleni were confronted with a smorgasbord of arguments raised by the counsel for the Public Protector, Dali Mpofu SC. Correctly, most of these were dismissed as having no legal merit, but one of the arguments, crucially, found favour with the court. That was the Public Protector’s claim of bias or reasonable apprehension of bias on the part of the President.

The court noted that the Phala Phala investigation was known to the President on 7 June. Two days later he signed the suspension letter. The court recorded that the President had been confronted with a list of questions generated in a letter from the Public Protector at the time of the decision to suspend her and that he had 14 days to respond. Furthermore, one day after her public announcement on 8 June 2022 that she had decided to launch an investigation into the Phala Phala matter, the President suspended the Public Protector.

“On these objective facts,” the court found, “it is reasonable to form the perception that the suspension of the applicant was triggered by the decision of the applicant to institute an investigation against the President. There was no other plausible or logical explanation from the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.”

The court was referring here to the judgment of the high court in the interim application, which was delivered on 10 June. Accordingly: “In our view, the hurried nature of the suspension of the applicant in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter, leads this court to the ineluctable conclusion that the suspension may have been retaliatory and, hence, unlawful.”

On the face of its reasoning, the finding seems justified. There can be little doubt that whoever advises the President on these matters delivered what, on the face of it, appears to be very poor advice. Instead of the customary tardiness in making his decision, the President could have acted much earlier. That he did not is one issue; that he did not wait the additional day when the earlier judgment was delivered is equally surprising.

Compelling arguments in favour of President’s decision

But this is not the critical legal issue here. There are compelling arguments in favour of the President’s decision. That the Public Protector announced her inquiry into Phala Phala when she did, raises the plausible inference that her timing was designed to justify the argument of conflict of interest. On the basis of the court’s finding in her favour, any investigation, however tendentious its justification, would suffice to prevent a suspension. And in this case, the conduct of the Public Protector was found seriously wanting in many judgments, and the plethora of punitive cost orders against her are a common cause.

What possible reasonable apprehension of bias is there when the decision is to suspend such a legally compromised (by countless judgments) head of a Constitution-designed institution to ensure honest government? 

In addition, it is surely trite that the Office of the Public Protector will continue to perform (many would say far better in her absence), including the continued conduct of the Phala Phala investigation.

The matter will now be decided by the Constitutional Court and it will have to weigh these arguments. Most certainly, the reasoning of the high court is open to searching legal analysis. And because it is the conduct of the President that has been declared invalid, section 172 (2) applies, which means the order of constitutional invalidity has no force until confirmed by the Constitutional Court.

That is important in the context of the desire of the Public Protector to resume her office. So, in this context and given the description of judgments against the Public Protector by her legal team before the Section 194 committee, this one can indeed be described in lay terms as but an opinion! DM