ConCourt says no bias in Ramaphosa’s suspension of Mkhwebane

Public Protector Busisiwe Mkhwebane and President Cyril Ramaphosa. (Photos: Felix Dlangamandla / Netwerk24 / EPA-EFE / Siphiwe Sibeko / Pool)

By Dianne Hawker

13 Jul 2023

The Constitutional Court has found that President Cyril Ramaphosa's decision to suspend Public Protector Busisiwe Mkhwebane was lawful and rational. The Western Cape Division of the High Court had ruled the suspension illegal in September 2022, but the ConCourt has now unanimously overturned that ruling.

Deputy Chief Justice Mandisa Maya, who penned the judgment, read out the ruling during a virtual sitting of the court.

“In this unanimous judgment, this court holds that there was a rational reason for the precautionary suspension of the Public Protector, which benefits her and her office as it allows her to centre her attention on her defence in the inquiry and safeguards the integrity of her office.”

Justice Maya also said that even if there were other rational courses of action that Ramaphosa could have taken, his decision to suspend Mkhwebane could not be said to be irrational due to the factual background and the finding made by an independent panel that had considered her conduct. The panel was headed by former Constitutional Court judge Bess Nkabinde.

The President stood to gain nothing from the suspension of the Public Protector as the acting PP continued with the investigation.

“In coming to this conclusion, I have considered the report of the independent panel chaired by Justice Nkabinde which found that there was prima facie evidence of incompetence on the Public Protector’s part, based on a number of repeated instances including what it described as overreaching as exceeding the bounds of her powers in terms of the Constitution.”

Nkabinde had also noted that Mkhwebane had stepped into the domain of Parliament when she directed it to amend the Constitution, had made incorrect interpretations of the law, failed to take relevant information into account and failed to provide affected people with an opportunity to reply.

At the time of Mkhwebane’s suspension in June 2022, her office was beginning an investigation into allegations against Ramaphosa relating to the theft of money at his Phala Phala farm.

Read more in Daily Maverick:

Exodus: President Cyril Ramaphosa suspends Public Protector Busisiwe Mkhwebane

Ramaphosa’s Farmgate scandal – a timeline of what we know (and don’t know) so far

Mkhwebane had argued that Ramaphosa had a bias towards her due to this investigation, but the Constitutional Court ruled that the evidence does not show that he acted in a biased manner.

“The President stood to gain nothing from the suspension of the Public Protector as the acting PP continued with the investigation,” Maya said.

Public Protector Busisiwe Mkhwebane and President Cyril Ramaphosa. (Photos: Felix Dlangamandla / Netwerk24 / EPA-EFE / Siphiwe Sibeko / Pool)

She added that Mkhwebane was not prejudiced as a result of the suspension as she continued to receive her salary and did not suffer reputational harm since the issues leading to her suspension were being dealt with in an inquiry in Parliament.

Read more in Daily Maverick: Unanswered questions, Part One: Evidence of secret meetings with Jacob Zuma and SSA involvement unchallenged by Mkhwebane

Maya also noted that the ConCourt had made “gravely adverse credibility findings against her” through various judgments.

The inquiry into Mkhwebane’s conduct is still under way and Parliament has simultaneously begun the search for her replacement as her term ends in October.

Parliament announced the nominees on Tuesday and said it would begin shortlisting candidates. DM

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