ConCourt upholds Mkhwebane's suspension

In a unanimous judgment penned by Deputy Chief Justice Mandisa Maya, the apex court said the mere fact that Mkhwebane was investigating the theft of foreign currency from Ramaphosa’s Phala Phala farm wasn't enough to conclude there was a conflict of interest.

"The president did not suspend the Public Protector to prejudice her,” Maya said.

“The suspension is only a precautionary one and does not harm her as she remains on full pay and has time properly attend to her defence in the Section 194 inquiry and suffers not reputation harm." 

The judgment sets aside the Western Cape High Court's ruling last September that Mkwebane's suspension was invalid.

The president and the DA appealed the decision. 

Maya said Mkhwebane's precautionary suspension was meant to allow her to focus her attention on the inquiry into her fitness to hold office and safeguard the PPSA office's integrity.

"It cannot be said that the president's decision to suspend her was irrational even if there were other rational causes open to him," says Maya.

Maya said the final judgment was written in consideration of the report of the independent panel, led by Justice Dlamini, which found that there was prima facie evidence of incompetence on the public protector's part, based on a number of repeated instances, including "grossly overreaching and exceeding the bounds of her powers, an incorrect interpretation of the law, failure to take relevant information into account and failure to provide affected persons with the right to be heard".

The apex court also found that Ramaphosa had nothing to gain in suspending Mkhwebane to influence the investigation into the Phala Phala scandal.

"The mere fact that the public protector was investigating the president couldn't expose him to a risk of conflict between his official responsibilities and private interests.

“The power to suspend the public protector is not a power that the president can exercise without safeguards. It is a tightly constrained power which may not be exercised for flimsy reasons.

“The president can only exercise this power after a committee of the National Assembly commences proceedings for her removal. The president neither determines the duration of the suspension nor decides whether there are credible allegations against the public protector. His role is confined to imposing a precautionary suspension to protect the Office of the Public Protector, which achieves nothing for his benefit because it did not delay or end the investigation against him.”

The court also found that the High Court ruling involving the president's conduct in this matter was indeed subject to the Constitutional Court's confirmation.

Mkhwebane is required to pay the costs in her personal capacity, including the costs of two counsels.

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