President Cyril Ramaphosa has rejected an ultimatum by Busisiwe Mkhwebane to reverse her suspension as public protector and signalled that he would oppose any attempt to overturn it in court.
“The decision stands and remains valid and binding,” he said in a letter sent in reply to hers giving him until late Tuesday afternoon to lift the suspension or face legal challenge.
Ramaphosa acknowledged the threat to take him to court but stressed that he had already been vindicated regarding his right to suspend her, when the Western Cape high court dismissed her application for an interdict barring him from doing so.
“I will not accede to your demand to reverse my decision to suspend you. I note in this regard your intention to refer the matter to an appropriate court to protect your constitutional rights on account of my allegedly unlawful conduct in suspending you,” he wrote.
“You had sought to interdict me from exercising my constitutional power to suspend you on two occasions. You failed in both instances.”
Mkhwebane has argued that the president acted unlawfully in suspending her, having lost the power to do so because he was conflicted because of the number of investigations against him conducted by her office.
Another was added to this past week, when she announced that she was investigating a complaint by the African Transformation Movement following allegations of criminal conduct former State Security Agency director general Arthur Fraser levelled against Ramaphosa regarding the theft of foreign currency from his Limpopo game farm.
Ramaphosa suspended her the following day but denied that it was done in retaliation or to hamper the investigation, which he said would continue under acting public protector Kholeka Gcaleka.
In his nine-page letter of suspension, he wrote: “I reiterate my view that the mere existence of a pending investigation does not, in and of itself, create a conflict of interest.”
Ramaphosa said her suspension will continue until the conclusion of a parliamentary process where she risks impeachment for misconduct and incompetence. He stressed that parliament was contemplating prima facie evidence that she had exceeded her powers, failed to uphold the ethical standards required of her by law and been less than truthful in court when taken on review.
The Western Cape high court last week held that there was nothing wrong with according a member of the executive the power to suspend someone who might investigate them, as long as the suspension had adequate safeguards.
This was the case here, it said, because the president could not exercise that power at a whim. By law, he could only proceed once parliament commenced proceedings to remove the public protector, which it did after credible allegations of wrongdoing were levelled against her.
“Regrettably this is precisely what we are dealing with in this matter,” the court said in a ruling handed down on 10 June, the day after Mkhwebane’s suspension.
Mkhwebane has described it as containing “glaring errors” and signalled that she would challenge the suspension because she maintains that it is suspect in law.
Ramaphosa said in the letter sent to her on Tuesday: “No purpose will be served by engaging in further debate by way of correspondence.
“I will oppose any application that you bring. I will also argue that in light of the two urgent applications that you have already brought, there are no grounds for a third urgent court application.”
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