Cape Town - The Constitutional Constitutional Court will today hear the consolidated application by the DA and President Cyril Ramaphosa to appeal the decision by the Western Cape High Court to set aside the president’s suspension of Public Protector Busisiwe Mkhwebane.
In June this year, the president informed Mkhwebane of his decision to suspend her. In September, the high court ruled that this decision was invalid and should be set aside on the grounds of actual bias on the president’s part and a conflict of interest.
The DA’s involvement in the case is as a result of it being the party that sponsored the impeachment proceedings against Mkhwebane in Parliament.
During the high court case, Mkhwebane’s
lawyer Dali Mpofu argued that the suspension might have been the president’s revenge for a letter sent to him containing questions relating to the Phala Phala farm burglary.
Mpofu also argued that Ramaphosa was aware that Mkhwebane was preparing to challenge impeachment proceedings against her when he suspended her.
Mkhwebane’s argument was that the president had the power to suspend only after Parliament began proceedings to remove Mkhwebane, at which stage “there will already, as a matter of necessity have been levied credible allegations of misconduct, incapacity or incompetence against Mkhwebane”.
This would mean that the suspension was unconstitutional, because it took place ahead of the process in Parliament to remove her from office.
At the Concourt, Mkhwebane will argue that neither the DA nor the president have made their case for an appeal to be granted and that whatever grounds they have put forward are baseless and must be dismissed.
She will argue that even if the Concourt finds grounds of appeal can be reached, such grounds are “weak and bad in faith and law that the applicants and/or appeals must fail in any event”.
It is the DA and the president’s case to determine these issues, the Concourt has to make an assessment of the nature of the power which the Constitution confers on the president, and the constraints on exercising it.
The DA and Ramaphosa argue that the president had met all the constitutional prerequisites to suspend Mkhwebane, and that the Section 194 parliamentary committee looking into her fitness to hold office was a properly constituted removal committee.
The DA further argues previous findings by other courts made it clear that Mkhwebane is unfit to hold the office, and that the president made his decision, and she is now trying to undo that decision on “contrived and unsustainable grounds”.
Meanwhile, Parliament’s hearings are set to continue on Monday, November 28, when Mkhwebane is scheduled to call her first witness.
The hearings were adjourned for two weeks on November 11 to give Mkhwebane and her legal team time to prepare her case and to call witnesses.
The witnesses that Mkhwebane will be calling when the committee resumes include her predecessor, Thuli Madonsela, Public Enterprises Minister Pravin Gordhan and the DA’s Natasha Mazzone.
mwangi.githahu@inl.co.za
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