Tshwarelo Hunter Mogakane
Pretoria - Public Protector advocate Busisiwe Mkhwebane was denied access to her office at the weekend despite a Western Cape High Court ruling setting aside her suspension by President Cyril Ramaphosa.
She was suspended on June 9, a day after announcing an investigation into the president’s Phala Phala farm robbery matter.
Her probe sought to establish if he had declared his animal selling “proceeds” made more than two years ago.
The investigation followed a request from African Transformation Movement (ATM) president Vuyo Zungula to investigate whether Ramaphosa had violated the Executive Members’ Ethics Act.
Mkhwebane approached the high court asking for her suspension to be declared invalid.
On Friday, the court ruled in her favour, but placed a disclaimer on the judgment which stipulated that the ruling should be confirmed by the Constitutional Court.
In its scathing judgment, the high court raised questions about Ramaphosa’s rush to suspend Mkhwebane while Part A of her application in the same court to reverse the suspension had not been delivered. The judgment was handed down on June 10, a day after Mkhwebane had already been suspended.
“In our view, the hurried nature of the suspension of the applicant in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter leads this court to an ineluctable conclusion that the suspension may have been retaliatory and, hence, unlawful.
“It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive.
“In our view, the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant,” the court ruled.
Justices Lister Nuku, Matthew Francis and Dumisani Lekhuleni said their judgment took into cognisance that Mkhwebane’s suspension was long in the making. “However, at the time the suspension was finalised, the president was dealing with an investigation by the applicant, the substance of the allegations of which he could not discuss as he had done with the other investigations, and this, in our view, is the critical time to assess whether it was still tenable for the president to exercise the suspension powers. From the objective facts, the decision of the applicant to investigate the president and put 31 questions to him, prompted the president not to wait a day and to immediately suspend her.
“Clearly, when the events that unfolded between June 7 and 10 are objectively examined, it is irresistible to conclude that the decision of the president was improper,” said the Full Bench.
The DA filed an appeal application to the registrar of the Constitutional Court several hours after the ruling.
This resulted in Mkhwebane being denied access her office.
Mkhwebane sent a WhatsApp message to Deputy Public Protector Kholeka Gcaleka to make arrangements for her return to the office, but in a media statement, Gcaleka told Mkhwebane that the appeal process effectively suspended the Western Cape High Court ruling.
ANC member Senzo Nkabinde, who has been defending Mkhwebane and calling for Ramaphosa to resign over the Phala Phala scandal, labelled the DA a desperate party.
He said that it was possible for the public protector to challenge the appeal in the Concourt.
Mkhwebane was not available for comment.
Pretoria News