High court challenge is a struggle for the keys to the Kingdom of the Office of the Public Protector

Advocate Dali Mpofu, one of the finest deployers of the Stalingrad legal strategy, has accused acting Public Protector Kholeka Gcaleka, as well as the Democratic Alliance and President Cyril Ramaphosa, of “wasting time” in court.

After the Western Cape High Court ruled on Friday, 9 September that Ramaphosa’s suspension of Busisiwe Mkhwebane be set aside as it was possibly tainted by bias, a literal struggle for the keys to the Kingdom of the Office of the Public Protector has been waged behind the scenes.

This Friday, 16 September, the Western Cape High Court began hearing Mpofu and Mkhwebane’s much-anticipated application to have its ruling immediately enforced regardless of legal challenges brought by the DA and the President.

But, what should have been, according to Mpofu, a quick in and out, began to unravel into a familiar legal marathon. This came after Gcaleka’s application to intervene in the matter as well as Ramaphosa’s opposition to Mkhwebane’s urgent application.

Mkhwebane has since taken ill and did not attend Friday’s hearing nor the Section 194 inquiry earlier this week. Her sick note, released by Mpofu on Twitter, indicates she is in Pretoria.

Advocate Tim Bruinders, representing Gcaleka, told the court the acting Public Protector wished to place the “true facts” before it and did not want to enter into any debate about Mkhwebane’s suspension. 

Gcaleka argued that her investigation into the break-in and the stash of cash stolen from the President’s Phala Phala farm has not been delayed due to Mkhwebane’s suspension.

‘Irrelevant and vexatious’

Mpofu charged that he was “perplexed and puzzled” by the application, that “now we have to waste time before we deal with the real issue which is simple”.

“We were hoping to get in and out,” said Mpofu, adding that “what should have been a quick matter will now be dragged out”.

He added that the Gcaleka’s affidavit “with all her tables and charts” as well as the DA’s 400-page whopper replete with evidence from Mkhwebane’s Section 194 inquiry, were all designed to keep Mkhwebane out of office.

Read more in Daily Maverick: “Ramaphosa vs Mkhwebane – Nkandla ‘will look like a picnic’, Mpofu warns inquiry as lawfare escalates”

“Her [Gcaleka] only interest in this case is to stay in that position for as long as possible,” Mpofu said.

He added that Gcaleka’s application and affidavit to the court were “irrelevant and vexatious” and that she lacked locus standi.

Mpofu did, however, set out in greater detail the haste with which Mkhwebane had attempted to wing her way to Pretoria after the judgment in Cape Town last week.

Mkhwebane, said Mpofu, shortly after the ruling at 2.30pm, had sent a message to Gcaleka “thanking her for holding the fort… all these nice things… then she WhasApped the CEO to say she would like to come to the office tomorrow and could he make security arrangements to get the keys.”

The fact that the CEO and security had “understood” what “the court had done” on Friday, argued Mpofu, was clear enough. They knew, he said, that Mkhwebane was no longer suspended.

“If that judgment had been at 7am, we all know what would have happened,” Mpofu told the court.