Constitutional court holds Ramaphosa’s suspension of Mkhwebane was valid

Read More

The constitutional court on Wednesday upheld President Cyril Ramaphosa’s appeal against a high court ruling that found his suspension of Busisiwe Mkhwebane as public protector was unlawful because it was tainted by bias.

It also upheld an appeal by the Democratic Alliance to the same ruling, handed down in September last year by the Western Cape high court.

“In my view, the evidence does not show that the president acted in a manner which exposed him to a situation involving the risk of a conflict between his official responsibilities and private interests,” Deputy Chief Justice Mandisa Maya wrote in a unanimous judgment.

Maya noted that the only basis on which the high court held that Ramaphosa could have been biased was the fact that he suspended Mkhwebane shortly after she initiated an investigation into the Phala Phala controversy.

Mkwebane was served with a letter of suspension on 9 June last year, two days after she wrote to Ramaphosa to inform him of her investigation into the theft of foreign currency from his Limpopo game farm.

The high court said the hurried nature of the suspension, sandwiched between the announcement by Mkhwebane of the investigation and a ruling by the same court on 10 June on her application for an interdict barring the president from suspending her, led to the conclusion that his decision may have been retaliatory and hence unlawful.

“It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive,” judges James Lekhuleni, Matthew Francis and Lister Nuku said.

“In our view the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant.”

Before the constitutional court, Ramaphosa’s counsel submitted that the timing was an unfortunate twist of fate, not proof that he was acting in retaliation.

Maya said in deciding whether his decision was vitiated by the apprehension of bias it was necessary to determine whether there was anything he would gain from it

“However,” she wrote, “it is necessary to understand that whether the president’s decision to suspend the public protector was biased depends on the assumption that he stood to gain a benefit from the decision.”

Such an assumption was unfounded, she concluded.

“The mere fact that the public protector is investigating him cannot create a reasonable apprehension of bias or, on the approach I take, expose him to a risk of conflict between his official responsibilities and private interests.”

There was no support on the record for the argument that Ramaphosa pressed ahead with the suspension to influence the outcome of the Phala Phala inquiry or to gain an advantage from the delay it might have caused, she added, noting that acting public protector Kholeka Gcaleka demanded that the president respond to the questions put to him by Mkhwebane. 

“The acting public protector, who has not been 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.”

Both Ramaphosa and the DA had filed applications opposing confirmation of the high court ruling by the constitutional court, a step that was necessary for that judgment to take effect since it concerned the constitutionality of the conduct of the president.

“The conditional application for confirmation of the said orders of invalidity is dismissed,” the constitutional court said.