Suspended Public Protector not threatened by the President, Mkhwebane in a bold-worded letter

Suspended Public Protector Busisiwe Mkhwebane has written to South African President Cyril Ramaphosa to demand the immediate reversal of her suspension or face the court.

Suspended Public Protector demand reinstatement

The suspended Public Protector Busisiwe Mkhwebane penned down a bold-worded letter to the presidency. She described the suspension as “illegal and irrational.” Mkhwebane threatened to take the matter to court if the president fail to meet her demands.

The president suspended Mkhwebane with immediate effect last week, pending the outcome of an impeachment process in parliament. Impeachment hearings are due to begin on 11 July. 

I state that you have seemingly read but not taken into account all the submissions made in my letters of representation and the pleading in Part of my court application. Had you done so, you would have come to a different and rational decision. I deny that the undertaking discuss between our respective legal representatives had anything whatsoever to do with Part B. Such an undertaking would have been senseless had it been on the cards. Part A of the application would have been unnecessary,” wrote Mkhweba.

said Mkhwebane

As you ought to know and as was articulated in open court, the undertaking in question related to the period between the hearing of Part A and the handling down of the reserved judgment. You undertook to inform me and or my legal team representatives as to whether or not you would give such an undertaking and, if so, on what terms, before making the suspension decision. You have clearly breached your undertaking in that regard by giving your indication simultaneously with the suspension letter. That response comes too late and serves no purpose.

Wrote Mkhwebane

Busisiwe Mkhwebane on her legal rights

Mkhwebane expressed that the reason for seeking the undertaking was to enable her to exercise her legal rights in the event of it not being given and it was aimed at minimizing or eliminating the need for unnecessary litigation. 

Your decision to suspend me as you put it “pending the finalization of the process taking place in the National Assembly for the removal of that person” Alternatively, I hereby squarely challenge you to pronounce when and what occasion you may allege that the proceedings envisage in the section had intended started. Your conduct is ultra virus and illegal. Your decision further calculated to and indeed will clearly have the severe effect of impending my preparation for the inquiry. This is in violation of my rights to fairness and full legal representation, as enshrined in the rules and confirmed by the Constitutional Court in its judgment dated 4 February 2022

Violation of my rights to fairness and full legal representation

Any case access to legal representation absent direct access to information and potential witnesses is essentially meaningless in the circumstances. It defeats the rights guaranteed in the rules. Although the letter states that I “will continue to receive a salary (sic), allowance and suspension is purported with all the other benefits that are attached to the position of the Public Protector during the period of suspension” such benefits can only be enjoyed if meaningful exercise in practice. The suspension is also illegal for these additional reasons. 

Suspended Public Protector outline “conflict of interest”

Regarding the conflict of interest issue, your indication that you are “of the view that there is no such conflict ” is totally irrelevant because as you know, the test is objective and not subjective views are there completely irrelevant. You have to notably not comment on whether or not, despite your view, there may be the risk of a conflict of interest, as contemplated in section 96(2)(b) of the Constitutional, which is binding upon you as a member of the Cabinet

The suspended public protector said that a section of the constitution restrains the president from being the suspending authority in her matter due to a conflict of interest.

The conflict or risk thereof arises because the six investigations in question, including the latest matters of Glencore and your Phala Phala farm, all involve serious and impeachable offenses. That brings about the risk and/or reasonable apprehension on my part that you will not act impartially. That perception is based on the principles which were articulated in the matter of The President versus The Public Protector and Others 2018 (2) SA 100 GP, in which the court held that your immediate predecessor, President Jacob Zuma, was disqualified from appointing the state capture commission of inquiry on the basis of, inter alia, a perceived conflict of interest and/or the risk thereof.

Busisiwe Mkhwebane says she is not threatened by the President

.You are no threat to me. More importantly and to your specific knowledge, all the six investigations in question were not initiated by me but came as complaints from third parties. The pending litigation regarding the unsealing of documents in the Bosasa matter is likely to have an impact on whether or not the public protector has jurisdiction over the CR17 funding matter, depending on the identities of the donors and the extent of your direct involvement. In any event, even if the Bosasa matter were to be discounted or totally eliminated from the equation, the numerous conflicts of interest related to the remaining five investigations remain.

read the letter

As you clearly believe in respect of calls for you to step aside due to the much more serious allegations of criminal conduct leveled against you, in respect of which there is seemingly more than prima facie evidence, the availability of persons to whom the work of the office of the president can be delegated is not sufficient reason for suspending a person or forcing them to step aside from their current responsibilities. Your argument in this regard is therefore inconsistent and unsustainable if it can only be applied to others but not to you, with all due respect.

wrote Mkhwebane