Acting public protector Kholeka Gcaleka has in an affidavit to the high court accused Busisiwe Mkhwebane of making false statements in support of a court application to allow her to return to work with immediate effect.
“The office of the public protector has a duty to correct these inaccuracies and untruths,” Gcaleka said in the affidavit filed in opposition of Mkhwebane’s application due to be heard on Friday.
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The suspended public protector is seeking to invoke section 18(1) of the Superior Courts Act to bring into immediate effect a high court ruling that found her suspension in June by President Cyril Ramaphosa was invalid.
Gcaleka is seeking leave to intervene. She says she does not do so to take issue with the lawfulness or otherwise of the president’s suspension of Mkhwebane but to counter the untruths about the work of the office of the public protector the latter puts forth in her application.
The first among these is a claim by Mkhwebane that she has been unable to access documents she needs for her defence in the ongoing parliamentary inquiry where she risks impeachment for misconduct and incompetence.
It is not true that she no longer had access to her work emails and that she had been denied access to crucial documents.
Gcaleka turns to Mkhwebane’s allegation that the investigation as to whether Ramaphosa has breached the law by deriving private income from his Phala Phala game farm has been perceived to have been delayed by her suspension.
“No facts have been put up to support these allegations,” Gcaleka said. “That is not surprising.”
She stressed that Mkhwebane has not been involved in the investigation since 9 June when she was suspended, two days after launching the probe.
“Consequently it is hard to believe that she has any knowledge of the actual progress of the investigation.”
Gcaleka stressed that it was hard to understand what is meant by a perceived delay, adding: “Perceptions are not fact.”
Moreover, she said Mkhwebane’s claim was at odds with statements she had made in the past to explain that the minimum time frame for completing an investigation into an alleged breach of the executive code of ethics was six months.
She noted insistent pressure from political parties to publish findings, and described these as unlawful attempts to interfere with the work of the chapter 9 institution. She was not, she added, prepared to risk the integrity of the office by rushing to release interim findings.
“The investigation team is still in the process of establishing the legitimacy of the allegations raised in the complaint.”
She said the team conducting the Phala Phala probe has been expanded since Mkhwebane was suspended.
The Western Cape high court last week found that the suspension was tarnished by bias on the part of the president, venturing that he may well have calculated that with Mkhwebane out of the way, the investigation against him might proceed at a slower pace.
Ramaphosa and the Democratic Alliance have filed papers to the constitutional court opposing the confirmation of the high court order. They are in the alternative seeking leave to appeal the ruling to the apex court.
Mkhwebane responded by filing for the immediate enforcement of the order, but the DA argues in papers that the relief is not available to her because only the apex court has the authority to give force to an order of invalidity in respect of the conduct of the president.
To her claim that she and the office of the public protector would suffer irreparable harm unless the order was enforced, Ramaphosa’s counsel has replied that this not true but that he and the rest of the country would suffer harm if it were.
