Another judgment and another loss for the Public Protector. This is such an unsurprising result that it is almost unnewsworthy. The only surprise was that somehow the Western Cape Division of the High Court had held that the decision of the President to suspend the Public Protector was invalid.
The matter then came before the Constitutional Court on the basis that the declaration of the invalidity of the President’s decision to suspend Busisiwe Mkhwebane was subject to confirmation by the Constitutional Court in terms of section 172 (2) (a) and (d) of the Constitution.
The declaration of invalidity had been made as a result of the Phala Phala scandal.
On 3 June 2022, the Public Protector received a complaint against President Cyril Ramaphosa requesting an investigation into any part which he might have played in the commission of alleged crimes during the Phala Phala episode.
On 7 June 2022, the Public Protector, reacting to this complaint, wrote a letter to the President instructing him to answer 31 questions in relation to the investigation she was conducting into the theft of foreign currency from the President’s Phala Phala game farm in Limpopo.
Given the President’s well-deserved reputation for never making decisions, the fact that on 9 June 2022 he suspended the Public Protector was a clear justification of a reasonable perception that the suspension had been triggered by the Public Protector’s decision to investigate him.
Having successfully won her case before the high court, the Public Protector then approached the high court in terms of section 18 of the Superior Courts Act to render its judgment operational pending any application for leave to appeal.
The effect thereof would have been to ensure her reinstatement into office. The high court dismissed this application, finally realising that setting aside the President’s decision required confirmation by the Constitutional Court.
The Constitutional Court, correctly, saw things very differently from the high court.
Admittedly, one has to trawl through 96 paragraphs before the Constitutional Court gets to the core of the dispute. This prompts the need for a further discussion on another occasion about the target of the court’s judgment; that is for whom it is writing.
But in paragraph 97, the court finally reaches the substance:
“This court has made gravely adverse credibility findings against the Public Protector.”
After citing a number of these judgments, the court reminded Mkhwebane and her counsel that “the court has also said that she has failed to display an open and inquiring mind, made findings that were not supported by the facts and it appeared that she was unduly suspicious of the person she was investigating”.
The only possible rational outcome
The court then referred to the independent panel set up by Parliament which had found prima facie evidence of the incompetence of the Public Protector, based on a number of repeated incidences of blatant overreaching and exceeding the bounds of her constitutional powers. For these reasons, the court concluded that on the evidence, “the cumulative effect of all these factors makes it clear that the decision to suspend the Public Protector was, on the merits, the only possible rational outcome”.
Yet again, the court was faced with a veritable range of irrelevant arguments. It noted “the substantive essential reasons which form part of her [the Public Protector’s] representation to the President which she sought to incorporate in her supplementary founding affidavit on the premise that she would rely on them to argue that the President’s decision to suspend her was irrational were ultimately not used. In any event, it did not appear to have any objective evidence.”
To the argument that there might have been a conflict of interest between the official responsibilities of the President and his private interests triggered by the Phala Phala controversy, the court noted: “There is no support on the record for the submission that the President suspended the Public Protector to influence the outcome of the Phala Phala investigation and benefit from the delay that the suspension was caused.”
The acting Public Protector, who in the view of the court was not 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”. (See, however, the criticism of the report on Phala Phala by the acting Public Protector by Professor Pierre de Vos in Daily Maverick.)
The court also noted that the suspension was a precautionary one and that Mkhwebane had been suspended on full pay. This observation was in regard to the allegation that her reputation was damaged by the suspension. In any event, the court correctly referred to the fact that there was a highly public inquiry into her fitness to hold office which is currently before Parliament.
The court rejected the argument that the President should have waited for the impending high court judgment “which sought to restrain him from suspending the Public Protector and which should have judicially determined, albeit on an interim basis, the lawfulness of the very decision he was to make”.
The court noted that “not to wait for the imminent judgment could have been seen as imprudent in showing a lack of caution on the part of the President. But whatever the case, that is not the legal test and the High Court’s reasoning is wrong.”
In addition, the high court was judicially rebuked for its inexplicable isolation of the events of 7 and 9 June 2022, and thus overlooking crucial evidence which justified the President suspending the Public Protector, a decision that “was long in the making”.
Mkhwebane had launched a cross-appeal arguing that Rule 89 of the National Assembly Rules prevented the Section 194 committee from proceeding with the inquiry into her conduct, because of a rescission application she had brought before the Constitutional Court and because of her application to the high court to stop the inquiry and set aside her suspension.
That application was dismissed by the high court, on the clear basis that, as the case turned on the conduct of the President, the invalidity had to be confirmed by the Constitutional Court. Thus, section 18 of the Superior Courts Act, which she had invoked as the legal basis of her ground of appeal, clearly did not apply in this case.
In keeping with her general process of litigation, the Public Protector persisted with this application and was correctly rebuffed by the Constitutional Court with the added penalty that she would personally be liable for the costs of this component of the case.
In this, the court remarked, “It is highly regrettable that this court and the other parties were burdened with an entirely unnecessary application.”
Frankly, it is highly regrettable that this entire sorry saga has dragged on through the courts to the extent that applications for the new Public Protector have already been published.
It is also regrettable that the Public Protector’s counsel were not penalised with a de bonis propriis court order, compelling them to personally pay costs.
The court held that there was no legal basis for the section 18 appeal. In fairness, a student in a constitutional law class would have known this. So, why did the counsel who argued this legally untenable case get off scot-free? What will be even more regrettable is for this Public Protector to escape the consequences of any adverse finding that may be made against her by the Section 194 committee simply because her term of office has come to an end. DM