Suspended public protector Busisiwe Mkhwebane.
The constitutional court on Thursday upheld President Cyril Ramaphosa’s appeal against a high court ruling that found his suspension of Busisiwe Mkhwebane as public protector was unlawful because it was tainted by bias.
In a ruling sharply critical of the reasoning of the Western Cape high court, it also upheld an appeal by the Democratic Alliance.
“In my view, the evidence does not show that the president acted in a manner which exposed him to a situation involving the risk of a conflict between his official responsibilities and private interests,” Deputy Chief Justice Mandisa Maya wrote in a unanimous judgment.
Maya noted that Ramaphosa stood to gain nothing from suspending Mkhwebane, and that the only basis the high court found that he could be biased was that he had done so shortly after initiated an investigation into allegations about his conduct in the Phala Phala controversy.
She was served with a letter of suspension on 9 June last year, two days after she wrote to Ramaphosa to inform him of her probe into the theft of foreign currency from his Limpopo game farm.
The high court said the hurried nature of the suspension, sandwiched between the announcement by Mkhwebane of the investigation and a ruling by the same court on 10 June on her application for an interdict barring the president from suspending her, led to the conclusion that his decision may have been retaliatory and hence unlawful.
“It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive,” judges James Lekhuleni, Matthew Francis and Lister Nuku said.
“In our view the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant.”
Before the constitutional court, Ramaphosa’s counsel submitted that the timing was an unfortunate twist of fate, not proof that he was acting in retaliation.
It was Mkhwebane’s argument that Ramaphosa was disqualified by section 96(2)(b) of the Constitution from suspending her because of conflicts of interest arising from her investigations, past and present, into various complaints involving serious and impeachable conduct against him.
Section 96(2)(b) stipulates that members of cabinet may not act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.
The conflict, Mkhwebane averred, was that Ramaphosa’s private interest would be furthered by thwarting her work.
The high court held that since the Phala Phala matter involved money earned by Ramaphosa outside of his official capacity, it was fair to say that the investigation involved his private interests and hence there is “a strong argument to be made” for a conflict of interest.
Maya noted that although the court held that all that was necessary was a real risk of conflict of interest, it had stopped short of stating the test for whether such existed.
The correct test, she said, was that of the reasonable person.
A lower standard would leave the exercise of executive power hamstrung, while a higher standard may shield the executive from the necessary public scrutiny.’
Turning to apply the test, Maya said the fact alone that Mkhwebane was investigating the president does not imply such a risk exists.
“The mere fact that the public protector is investigating him cannot create a reasonable apprehension of bias or, on the approach I take, expose him to a risk of conflict between his official responsibilities and private interests.”
Having settled the question of a risk of conflict, as envisaged in section 96(2)(b), it was not necessary to decide the question of bias. But, Maya said, here her conclusion would have been the same.
To decide whether the president’s decision was vitiated by the apprehension of bias, as the high court did, it was necessary to determine whether there was anything he would gain from it.
“However, it is necessary to understand that whether the president’s decision to suspend the public protector was biased depends on the assumption that he stood to gain a benefit from the decision.”
Such an assumption was unfounded, Maya concluded.
There was no support on the record for the argument that Ramaphosa pressed ahead with the suspension to influence the outcome of the Phala Phala inquiry or to gain an advantage from the delay it might have caused, she added.
Acting public protector Kholeka Gcaleka was firm in demanding that the president respond to the questions put to him by Mkhwebane.
“The acting public protector, who has not been shown to be incompetent or to lack independence, continued with the investigation diligently and insisted on a response to the 31 questions posed by the public protector to the president, which were then furnished.”
The constitutional court noted that Ramaphosa had no influence as to who would take over the Phala Phala investigation because the law determined that her deputy would assume the role of public protector in an acting capacity in Mkhwebane’s absence.
And it went on to find that the timeline of events leading to her suspension was, in the final instance, irrelevant though Ramaphosa’s counsel conceded in pleadings that “the optics look very awkward”.
Her submissions were only received on 26 May, after which the president’s advisers started drafting the letter and then placed it before him for signing 8 June.
Maya faulted the high court ruling for overlooking these facts, and said that the ruling on Mkhwebane’s application for an interdict was still pending when she was suspended may seem dubious, but it was not determinative.
“Not to wait for the imminent judgment could be seen as imprudent and showing a lack of caution on the part of the president. But, whatever the case, that is not the legal test and the high court’s reasoning is wrong.
“Its judgment, which inexplicably isolated the events of 7 to 9 June 2022, overlooked critical evidence that amply shows that the suspension was long in the making.”
It similarly overlooked the fact that Ramaphosa only learnt that the court ruling would be handed down on 10 June after he had issued the suspension letter, Maya said, noting that this the high court “acknowledged but puzzlingly accorded no weight”.
“These facts clearly do not support the high court’s finding of a ‘hurried’ or ‘retaliatory’ decision,” she said.
“This is particularly so in the light of the president’s evidence that the suspension letter had been prepared over several days and that a revised draft thereof was finally sent to him for consideration on the evening of 8 June 2022.
“But for the late emergence of the Phala Phala complaint, nobody could have suggested anything sinister about the timeline.”
Maya said it was worth noting that case law was clear that a pending court ruling did not preclude a decision-maker from taking a lawful decision, and adding, regarding the timeline, that if anything there might have been a complaint that Ramaphosa should have moved sooner on the suspension.
There was ample cause for a precautionary suspension given the serious allegations Mkhwebane faced in the ongoing section 194 inquiry in parliament mulling whether she should be impeached for misconduct and incompetence, the court said.
“These allegations which are, inter alia, based on the judicial findings of no less than this court, would undoubtedly cause grave public concern about the integrity of the Office of the public protector were the incumbent to remain in office while they are being investigated.”
It was a matter of record that the courts have previously found that Mkhwebane had not kept “an open and inquiring mind” when investigating Ramaphosa, and this “militates against the possibility of a risk of conflict and detracts from the idea that the president is disqualified from suspending her”.
The constitutional court had in an earlier ruling rejected the notion of “reactive bias”, where a decision-maker is argued to be disqualified because the subject of his decision had insulted or attacked him in some way.
In another case, Maya added, the apex court had held that section 89 of the Constitution obliged the president to endure and fulfil all duties imposed on him with grace, “however unpleasant”. These include suspending the public protector if warranted.
“So the mere fact that the president was one of the subjects of the public protector’s investigations could be no bar to his exercise of the constitutional responsibility of suspending her.”
The presidency welcomed the ruling. Ramaphosa was cleared of wrongdoing in the public protector’s report on Phala Phala, which was released by Gcaleka late last month.
She found that the allegation that he had violated the Executive Ethics Code and that there was a conflict of interest between his business dealings and his constitutional obligations “is not substantiated”.
