Suspended public protector Busisiwe Mkhwebane has been litigating so much lately, it is hard to keep track of it all. But her appearance in the Constitutional Court on Thursday is one to watch: the court will have the last word on whether her suspension was lawful and its order is likely to determine what will happen to Mkhwebane until parliament rules on her impeachment.
Mkhwebane continues to pursue, through a “conditional cross-appeal”, a number of grounds she brought before the Western Cape High Court to challenge her suspension by President Cyril Ramaphosa, most of which were rejected.
But the strongest arrow in her quiver is the argument that the high court accepted: that Ramaphosa “could not bring an unbiased mind to bear” in suspending her because he was conflicted by the investigation arising out of the burglary at his Phala Phala farm.
The high court in September set aside her suspension, but the DA and the president appealed the order to the Constitutional Court.
Addressing what is likely to be the central issue may require the apex court to look into legal requirements to establish bias or a conflict of interest on the part of the president when exercising his powers under the constitution. The law is well developed on bias and conflict of interest when it comes to judges. There is also a well-developed set of legal principles regarding the establishment of bias on the part of administrators.
Arguably, different considerations should apply to the president exercising a power granted to him under the Cconstitution
But, arguably, different considerations should apply to the president exercising a power granted to him under the constitution.
The high court said it had “grave doubts” that the test used to determine if judges should recuse themselves would apply to members of the executive. In written submissions, the advocates for all sides make extensive arguments for how courts should approach the law regarding bias and conflict of interest.
Perhaps even more important in this case is how the apex court looks at the facts. The president’s counsel, Geoff Budlender SC and Karrisha Pillay SC, said the evidence did not demonstrate a risk of conflict of interest, that the president showed any actual bias or that a reasonable person would apprehend any bias. So in any test, the evidence was not there, they argued.
For there to be a conflict of interest there had to be some type of benefit to Ramaphosa by removing Mkhwebane, they said. While Mkhwebane suggested her suspension delayed or “destabilised” the Phala Phala investigation, there was no evidence to back this up. Instead: “The acting public protector is diligently pursuing the investigation. There is not a scrap of evidence to suggest, let alone show, that her manner of doing so will benefit the private interests of the president,” said the president’s counsel.
But Mkhwebane’s counsel, Dali Mpofu SC, said what the high court was guarding against was “a brand of ‘forum-shopping’”, in that Ramaphosa had an interest in avoiding being investigated by Mkhwebane “irrespective of who the replacement would be”.
“Such a scenario of undue avoidance is sufficient to base a case of actual or perceived bias,” he said.
Budlender and Pillay also argue the suspension was long in the making, with Ramaphosa already asking Mkhwebane why she should not be suspended in March, long before her Phala Phala investigation. The president’s suspension letter “had been prepared over a number of days”, contradicting the court’s finding that the president’s decision was “retaliatory and/or hurried”, they said. Mpofu’s answer to this was that the requirement against bias must apply at every stage of the process.
If the Constitutional Court decides Ramaphosa’s decision was unlawful, a second question becomes crucial: what should the apex court then order? The DA argues that even if the president is found to be conflicted, the suspension should be kept in place for a month to allow an unconflicted person — the deputy president — to decide if she should be suspended. Recounting the original reasons for Mkhwebane’s suspension, the DA's counsel Steven Budlender SC said: “It is difficult to think of a clearer case where suspension is not only justifiable, but necessary to protect the integrity of the office.”
Mpofu rejected this, saying it was not a just and equitable order and the DA had not set out grounds to support it.
Then there is a further question — pertinently raised by Mkhwebane — about what happens in the interim. She wants to return to work immediately. An attempt to achieve this in the high court failed and she is now asking the apex court to assist her. In argument, Mpofu rails against the “outrageous suggestion that the period of one month or even one week in such a situation must merely be tolerated with the silence of the lamb”.
The suggestion was “even more objectionable” when there was a real likelihood that the apex court would reserve judgment, “given the complexity of the issues and the looming December/January break”.
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