Africa-Press – South-Africa. There are no exceptional circumstances warranting Public Protector Busisiwe Mkhwebane’s relief sought in the Western Cape High Court to uphold the court’s invalidation of her suspension by President Cyril Ramaphosa, his lawyer argues.
Hours after the court handed down its judgment overturning Mkhwebane’s suspension, the DA lodged a notice to appeal directly to the Constitutional Court, putting Mkhwebane’s return to her office on ice.
On Saturday, Mkhwebane filed an urgent application aimed at ensuring that she returns to her position, seeking a ruling from the Western Cape High Court that her suspension is “… declared to be operational and executable… pending any application for leave to appeal and/or appeal”.
Mkhwebane contended that the delays, not only to the Phala Phala investigation but also to the office’s other work, would be “… quite serious and clearly irreversible” if she was not able to return to work.
She wanted to return to her office to tackle, among other things, “…the most urgent issue of the Phala Phala investigation”.
In a responding affidavit on behalf of Ramaphosa filed on Wednesday, State attorney Mark Owen argued there are no exceptional circumstances, “and she has shown none” why the High Court should grant her request.
“Adv Mkhwebane cannot show on a balance of probabilities that she will suffer irreparable harm if the court does not so order.”
READ | Mkhwebane seeks court backing to return to work so she can finish ‘most urgent’ Phala Phala probe
Owen also took issue with Mkhwebane not asking the Constitutional Court to confirm Friday’s ruling, as the order relates to the conduct of the president.
“Adv Mkhwebane has not sought confirmation of the Full Court order. Such relief could and should have been sought on an urgent basis if she intends to rely on the relief granted by the Full Court as a matter of urgency,” argued Owen.
Owen pointed out that the only basis on which the court invalidated Mkhwebane’s suspension was because they found a “reasonable apprehension of bias and a conflict of interest” related to her Phala Phala investigation.
“Adv Mkhwebane has never challenged the reasons for her suspension, and the Full Court did not find substantive shortcomings with the reasons for the suspension.”
According to Owen, this undermines Mkhwebane’s case. In an accompanying affidavit, Ramaphosa’s attorney Peter Harris states that there had been “a number of interactions” with acting Public Protector Kholeka Gcaleka on the Phala Phala investigation, saying Ramaphosa was cooperating with the investigation and intended to continue doing so.
On Tuesday, Ramaphosa applied for leave to appeal the High Court ruling in the Constitutional Court.
Like the DA, Ramaphosa argues the full Bench order that Ramaphosa’s suspension of Mkhwebane was invalid and needs to be confirmed by the apex court to become effective. But, if this is not the case, the president is bringing a conditional application for leave to appeal the ruling directly to the Constitutional Court.
If the Constitutional Court didn’t grant the conditional leave to appeal, Ramaphosa would turn to the Supreme Court of Appeal (SCA).
Ramaphosa’s lawyers also argued that there is no evidence that Mkhwebane’s suspension had anything to do with Phala Phala.
The full bench’s ruling that the Public Protector was improperly suspended was based on the fact that Ramaphosa suspended Mkhwebane while he was engulfed in a scandal around a February 2020 burglary at his Limpopo game farm, Phala Phala.
READ | ‘No evidence’ Ramaphosa suspended Mkhwebane because of Phala Phala – lawyers
The Phala Phala scandal erupted days before Ramaphosa suspended Mkhwebane.
On 1 June, Arthur Fraser, former director-general of the State Security Agency and former correctional services commissioner, opened a kidnapping and money laundering case against Ramaphosa, Presidential Protection Unit head Major General Wally Rhoode, and Crime Intelligence members for allegedly concealing the break-in.
According to Fraser’s affidavit, Ramaphosa had at least US$4 million in cash stashed in a couch at his game farm – and then played a part in a cover-up following an allegedly illegal investigation into the matter.
Mkhwebane had informed Ramaphosa on 7 June that she was investigating him over Phala Phala.
Two days before she was suspended, Mkhwebane sent Ramaphosa the 31 questions about the break-in.
While the High Court appeared unconvinced by the bulk of Mkhwebane’s challenges to the impeachment process against her, it found that “from the objective facts, the decision of [Mkhwebane] to investigate the President and to put 31 questions to him, prompted the President not to wait a day more and to immediately suspend her”.
“Clearly, when the events that unfolded between 7 and 10 June 2022, discussed above, are objectively examined, it is irresistible to conclude that the decision of the President was improper.”
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