Cape Town - Suspended Public Protector Busisiwe Mkhwebane’s lawyer – advocate Dali Mpofu SC – has told the Western Cape High Court that President Cyril Ramaphosa’s suspension of her was unconstitutional.
Mkhwebane was in court in a bid to overturn her suspension, which Mpofu said was triggered by a letter written by National Assembly Speaker Nosiviwe Mapisa-Nqakula in March this year.
The letter from the Speaker informed the president that the committee on the Section 194 inquiry to consider her removal would be resuming its proceedings.
After hearing from the Speaker, Ramaphosa issued Mkhwebane with a 10-day notice in which to explain why he should not suspend her in terms of Section 194 of the Constitution.
Mpofu argued before a full bench of the high court comprised of Judges Lister Nuku, Matthew Francis and James Lekhuleni that the Speaker had no constitutional authority to write that letter to Ramaphosa and that the letter had led to huge consequences, including the current court action.
He said Ramaphosa suspended Mkhwebane “out of revenge” because of her report on the CR17 presidential campaign, and the 2020 burglary at his Phala Phala farm.
Mpofu said the suspension came one day after Mkhwebane posed 31 questions about the Phala Phala farm burglary to him, which triggered her suspension.
He also said Ramaphosa was aware that Mkhwebane was preparing to challenge impeachment proceedings against her when he suspended her and that the suspension was unconstitutional, because it took place ahead of the process in Parliament to remove her from office.
Mpofu argued that the Constitution provides for possible suspension only after the commencement of the removal committee.
The Speaker’s letter to the president followed the committee’s meeting on February 22, when it adopted the terms of reference which set out the parameters of the inquiry.
During that meeting the committee also resolved to continue with its consideration of the motion of removal of the public protector which had been tabled on February 21, 2020 by DA chief whip Natasha Mazzone.
The inquiry by Parliament, which has been adjourned to allow Mkhwebane to argue the matter in court, was set up as a constitutional process to establish on the basis of evidence presented whether she was incompetent or guilty of misconduct, as alleged.
The inquiry previously delayed its start as Mkhwebane went to the Constitutional Court to challenge the constitutionality of the National Assembly rules governing the removal processes for Chapter 9 office-bearers.
In its order, the apex court dismissed Mkhwebane’s application on the basis that it did not establish any rescindable errors in the court’s judgment, and that no exceptional circumstances existed that warranted a rescission of its decision.
Mpofu argued that even if the parliamentary committee was a properly constituted removal committee, the suspension was still unconstitutional because it was not completely clear when the proceedings actually began, as a number of different commencement dates had been announced.
Mpofu said: “Everyone who stands up in court must tell it when the proceedings began. The date should be fixed.”
At this point Judge Nuku interrupted Mpofu to say his argument was a question of interpretation, and that the facts had played themselves out.
Parliament has said the committee was established March 16, 2021 to conduct a constitutional inquiry into Mkhwebane’s fitness to hold office.
In June, the Western Cape High Court dismissed Mkhwebane’s application for urgent interim relief to interdict the Section 194 committee processes.
In that matter she had sought to interdict the Speaker and the Section 194 committee from taking any further steps in the process of the inquiry into her removal from office, and simultaneously sought to interdict the president from suspending her.