By Lehlohonolo Lehana.
The Constitutional Court (ConCourt) dismissed Busisiwe Mkhwebane’s application to reverse her suspension on Thursday, eight months after the full bench heard arguments from all parties involved in the matter.
Mkhwebane was suspended by President Cyril Ramaphosa in June last year, a day after she announced that her office would investigate the president’s conduct regarding the Phala Phala farm scandal.
The suspended public protector approached the Western Cape High Court challenging her suspension, with the court ruling in her favour.
She then filed an application with the ConCourt, which was opposed by Ramaphosa, the Democratic Alliance (DA) and National Assembly Speaker Nosiviwe Mapisa-Nqakula.
The apex court set aside the Western Cape High Court ruling that overturned her suspension in a unanimous judgment penned by Deputy Chief Justice Mandisa Maya, handed down on Thursday.
The court found that the mere fact that Mkhwebane was investigating him wasn’t enough to say there was a conflict of interest in him suspending her.
Her suspension didn’t have any benefit for him, as it did not hamper the investigation, and there is no evidence that he suspended her for the Phala Phala investigation.
In a unanimous judgment, Deputy Chief Justice Maya said the apex court found that there was a rational reason for the precautionary suspension of Mkhwebane.
Maya said the court was of the view that the Public Protector’s suspension would have allowed her to focus on her defence in the Section 194 Inquiry into Mkhwebane’s fitness to hold office.
“It cannot be said that the president’s decision to suspend her was irrational even if there were other rational causes open to him,” she said in delivering the judgment.
The court also dismissed Mkhwebane’s application to have her impeachment declared unconstitutional. Mkhwebane must pay a part of the costs in her personal capacity.
Mkhwebane, and the ATM have complained about the long wait for a judgment. Mkhwebane said the judgment would be merely academic.
After several delays, Mkhwebane didn’t conclude her testimony before the Section 194 inquiry and refused to answer the committee’s questions, which it had to submit in writing.
The committee will now only consider the evidence already before it is expected to adopt its report on 28 July.
Mkhwebane’s term expires on 14 October, at which time she will receive a gratuity of around R10 million.
Meanwhile the ANC and the DA have welcomed a Constitutional Court ruling which upheld the suspension of Mkhwebane.
The DA’s Glynnis Breytenbach said the Constitutional Court’s decision would hopefully end Mkhwebane’s various legal challenges and instead see her cooperate with the inquiry into her fitness to hold office.
“The continued suspension of Mkhwebane will allow her to focus on her defence in Parliament and prevent reputational damage to the Office of the Public Protector while the inquiry is finalised.
“The DA urges her to cease engaging in litigation aimed at stalling the Section 194 inquiry proceedings and instead offer the Section 194 Committee her full support and cooperation in order for it to reach a timely conclusion.
“As her term in office concludes this October, the DA is looking forward to a robust selection process to appoint a new Public Protector,” said Breytenbach.
At the same time, ANC spokesperson Mahlengi Bhengu-Motsiri said the judgment vindicated the president’s decision to suspend Mkhwebane.
“In these circumstances, the ANC calls upon all state organs to speedily move forward to bring stability to the Office of the Public Protector, an important constitutional organ in our democratic architecture.”
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