Mkhwebane’s suspension is not proof of Ramaphosa’s bias

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“Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But, they are not entitled to inject their personal views into judgments or express their political preference.” This is an extract from a judgment of the supreme court of appeal (SCA) handed down unanimously on 12 January 2009. 

The judgment overturned Judge J Nicholson’s verdict in a case that involved the National Prosecuting Authority (NPA) and former president Jacob Zuma. Nicholson had ruled that the charges against Zuma should be withdrawn on account of a political conspiracy. In its ruling, the SCA berated Nicholson for “failing to distinguish between allegation, fact and suspicion”. 

My mind was taken back to that 2009 judgment, almost 13 years ago on reading the judgment from the Cape Town high court issued by a full bench. The case involved the embattled public protector, Busisiwe Mkhwebane, who had pleaded with the court to order parliament to halt her impeachment process and to nullify her suspension by President Cyril Ramaphosa. 

The judgment rejected the plea to stop the impeachment process but granted Mkhwebane’s request to declare her suspension invalid. The judges nullified the suspension saying that the president was biassed due to a conflict of interest. This was because Mkhwebane had Ramaphosa investigated on six separate occasions and, at the time of her suspension, had launched another investigation related to the burglary at his Phala Phala game farm. 

According to the judges, the timing of the suspension was most troublesome. It happened a day after Mkhwebane had announced that she was investigating the president, and just before the Cape Town high court issued its decision on Mkhwebane’s application. 

In other words, the court didn’t base its ruling solely on what it calls a conflict of interest, but also felt that Ramaphosa sought to render its decision null and void. The reasoning of the court is self-contradictory and based on erroneous assumptions. It is illogical.