President Cyril Ramaphosa has in court papers insisted that he was told by parliament that impeachment proceedings against public protector Busisiwe Mkhwebane had started and that, in law and under the constitution, he was entitled to suspend her.
However, in line with an undertaking given by Ramaphosa and an agreement with Mkhwebane to receive her representations on May 4, nothing would happen before then.
The president was responding to court papers filed by UDM leader Bantu Holomisa in support of Mkhwebane in her legal battle to halt proceedings and prevent her suspension.
This week Holomisa and African Transformation Movement (ATM) leader Vuyolwethu Zungula filed an affidavit supporting Mkhwebane’s position that the impeachment process should not proceed while she is applying to the Constitutional Court to reverse its judgment on the constitutionality of impeachment rules.
The Western Cape high court is due to hear her urgent application on Tuesday and Wednesday. One issue the court may need to decide on is whether the impeachment process has, in law, started.
This is when the president’s power to suspend begins. Section 194(3) of the constitution says the president may suspend the public protector “at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person”.
Holomisa said in his affidavit that the “common understanding” among the members of the committee was always that the enquiry would start only on May 4.
Responding, Ramaphosa explained that he had no knowledge of the “common understanding among members of that committee” and how or on what basis that understanding was reached. But in his answering affidavit he had explained that on March 10 2022 the speaker wrote to him about the resumption of proceedings of the committee on the section 194 enquiry.
He said the information conveyed to him by speaker Nosiviwe Mapisa-Nqakula last month was “(and is) in my view sufficient to demonstrate that the threshold requirement in section 194(3)(a) of the constitution, viz, any time after the start of the proceedings of a committee of the National Assembly for the removal of that person, had been met”.
Ramaphosa also said he was given other information including terms of reference and a draft programme.
“All of the above-mentioned information led me to conclude that the proceedings of the section 194 committee had started,” said Ramaphosa.
“The UDM and the ATM accept that the work of the committee was started soon after its establishment but contend that that work cannot be described as the enquiry itself.”
Ramaphosa said evidence leaders had been appointed and the start of proceedings is not synonymous with the appointment of evidence leaders.
“I do not accept that the start of proceedings will happen on the first date of appearance. As explained in my answering affidavit, certain steps have already been adopted by the committee which include the adoption of its terms of reference and the appointment of the evidence leaders.”
While he noted that Mkhwebane had identified the start date as May 4 or any other suitable date, he said, “Given the agreement reached between the public protector and I that the public protector's representations to me are due on 4 May 2022, I will not decide the question of the public protector's possible suspension before 4 May 2022.”
In his affidavit signed on April 20, Richard Dyantyi, chair of the committee, confirmed that proceedings had begun.
Ramaphosa used the opportunity to reply to new matters, including allegations of judicial capture, raised by Mkhwebane, saying they should be struck off.
In her affidavit, Mkhwebane referred to a complaint from the EFF which alleges Ramaphosa and justice minister Ronald Lamola were involved in an “underhand, unlawful and unethical operation” to give judge Dunstan Mlambo an advantage in the selection of a chief justice.
“If true, these allegations clearly amount to a very serious case of attempted judicial capture and clear breaches of the relevant code of ethics binding upon both minister Lamela and/or the president. The said conduct would also be in breach of section 96 of the constitution as well as the relevant oaths of office taken by the two cabinet members. Such breaches, if established, constitute treason at worst and impeachable offences at best. They also possibly constitute violations of the Prevention of Corrupt Activities Act 12 of 2004. In any event, the full legal implications must be investigated and determined,” said Mkhwebane.
In response, Ramaphosa said: “I state at the outset that this is the first time that I have seen the complaint by the EFF against me. I became aware of this complaint for the first time on receipt of the founding affidavit.”
On the complaint itself, Ramaphosa says he is not aware of allegations made against Lamola.
Ramaphosa also denied that there are “other indications and/or circumstantial evidence pointing to the conclusion that Mlambo JP was the candidate preferred by minister Lamola and/or the president for the position of chief justice.”
“I did not instruct the (then) deputy chief justice to appoint judge president Mlambo to act in the Constitutional Court and deny the allegation. I played no role in the appointment of Mlambo JP as an acting judge in the Constitutional Court.”
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