The standoff between President Cyril Ramaphosa and suspended Public Protector Advocate Busisiwe Mkhwebane seems far from over.
On Monday, the president received a letter demanding that he reverse Mkhwebane’s suspension by the close of business on Tuesday or face further court action.
he sent a personally signed letter to Ramaphosa, in which she attacked the merits of his decision to place her on leave, saying his actions were in retaliation to the questions she had posed to him about the alleged robbery at his Phala Phala game farm.
City Press reported over the weekend that last Wednesday, Mkhwebane gave Ramaphosa 14 working days, ending June 24, to provide detailed responses and records related to the alleged robbery on February 9 2020 of an estimated $4 million (R60 million) said to have been concealed in couches at his game farm in Waterberg, Limpopo, to the Public Protector’s investigating team that is conducting a preliminary inquiry into the allegations.
Ramaphosa suspended Mkhwebane the following day until the parliamentary inquiry into her fitness to hold office is concluded, dismissing her argument that the parliamentary impeachment committee had not started.
In Mkhwebane’s absence, Ramaphosa said that Deputy Public Protector Advocate Kholeka Gcaleka would perform her suspended senior’s functions and that “the absence of advocate Mkhwebane from the office will therefore not impede the progress of any investigations that are pending or under way”.
The next day, on Friday, the Western Cape High Court issued its reserved judgment on the matter, dismissing Mkhwebane’s application to interdict Ramaphosa from suspending her on the grounds of a conflict of interest.
In the letter on Monday, Mkhwebane said that Ramaphosa was speaking in forked tongues when it came to calls that he should step aside “due to the much more serious allegations of criminal conduct levelled against you [regarding Phala Phala], in respect of which there is seemingly more than prima facie evidence”.
She said that while Ramaphosa had so far refused to step aside, citing that “the availability of persons to whom the work of the office of the president can be delegated is not sufficient reason for suspending a person or forcing them to step aside from their current responsibilities”, he took a different posture when it came to her case.
Further, she wrote, the submission that her deputy could perform her functions was “a clear misreading of the Constitution and numerous relevant decisions of the Constitutional Court”, adding that “on a proper reading thereof, the Public Protector and the duly appointed incumbent are synonymous references to me”.
She said the provision for the deputy to act was applicable only “if my inability to perform my functions is based on a legal or otherwise genuine reason, which is not at present the case”.
“Your suspension letter is also generally premised on the incorrect premise that the Public Protector may somehow be separated from the incumbent, who is duly appointed to that position by the National Assembly.”
Mkhwebane is of the view that the effort to draw an artificial line between the person and “the office” was stillborn.
She said Ramaphosa had also acted in contempt of court by suspending her exactly a day before the court was expected to rule on the matter.
“Your decision to suspend was also illegal in that it was taken in contempt of court and/or in breach of section 165 of the Constitution because, to your knowledge, a decision of the high court on the exact question of your powers and/or right to suspend was imminent and/or due to be delivered on the day following your suspension letter.”
In his letter of suspension, Ramaphosa repeated “exactly the arguments which you advanced in the court papers in the matter in respect of which the reserved judgment, in which those submissions were, to your knowledge, to be imminently and objectively adjudicated by a court of law. In such circumstances, you bore a legal duty to await the judgment of the court”.
Mkhwebane said his conduct was therefore in wilful and anticipatory defiance of the court.
“Such conduct was also done in bad faith, in that the only logical explanation for such otherwise inexplicable behaviour is that it was done in retaliation or as a reprisal for the questions I had just posed to you in the legitimate performance of my duties and as a result of the complaint received in respect of your Phala Phala matter.”
“That explains the undue haste in implementing my suspension. It was to serve a personal purpose and not a constitutional one.”