By Lehlohonolo Lehana.
Public Protector Busisiwe Mkhwebane has taken the fight against her suspension and the parliamentary process to remove her from office to the Western Cape High Court.
This comes after her failed bid to interdict her suspension and the parliamentary process to remove her from office on grounds of incompetence and misconduct.
In her Part B application, Mkhwebane wants the court to find the conduct of National Assembly Speaker Nosiviwe Mapisa-Nqakula to write a letter to President Cyril Ramaphosa on resumption of removal proceedings set aside.
She also wants the court to find the conduct of Ramaphosa to suspend her to be invalid as well as the conduct of the Section 194 Committee to proceed with its work while she was appealing a Constitutional Court judgment, among others.
Mkhwebane’s legal counsel advocate Dali Mpofu said once the court declared conduct inconsistent with the Constitution, such conduct was invalid.
He said the head of Chapter 9 Institution may be removed only on a finding by a committee of the National Assembly and that the president could suspend after the start of proceedings of a committee of the National Assembly for removal of that person.
But, according to Advocate Karrisha Pillay, in terms of Section 96 of the Constitution, the risk of a conflict exists if the president derives a private benefit from exercising an official duty.
Pillay said the proceedings of the committee commenced long before Ramaphosa suspended the public protector on 9 June 2022.
Pillay said the only one of the cases involving Ramaphosa’s personal interests was the Phala Phala matter.
She also pointed out that the Public Protector Act required the Deputy Public Protector to fulfil the functions of the Public Protector in the event that she became unable to do so.
Acting Public Protector Kholeka Gcaleka stated that the office’s investigations would continue, the court heard.
“There is no suggestion the Acting Public Protector won’t execute her duties,” Pillay added.
In those circumstances, the risk of a conflict between the official duties and private interests didn’t exist.
According to Pillay, Ramaphosa also agreed to cooperate with the investigation.
“There is no evidence before this court to contradict the president’s statements,” she added.
Ramaphosa sent Mkwhebane a letter on 18 March, Pillay said, to ask her to give reasons why he shouldn’t suspend her. “Many, many letters” between the two followed, which meant Mkhwebane was appraised of the fact that Ramaphosa was considering her suspension.
Judge Matthew Francis, who is hearing the matter along with Judges Lister Nuku and Judge James Lekhuleni, said the Acting Public Protector’s continuation of the investigation didn’t mitigate the risk.
But Pillay responded there was no risk because the president had no say in who the Acting Public Protector was.
Judgment has been reserved in the matter.
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