Ramaphosa’s 10 day offer to Mkhwebane ‘quite generous’ – experts

A mid fierce criticism levelled at President Cyril Ramaphosa by the Economic Freedom Fighters (EFF) for being “premature and dictatorial”, legal experts yesterday said the move was within the law, with one saying he was “quite generous”.

Ramaphosa requested embattled Public Protector, advocate Busisiwe Mkhwebane to provide him with reasons why she should not be suspended in terms of the constitution.

The EFF described Ramaphosa’s letter to Mkhwebane as “a veiled threat and an effective removal of the public protector, before a democratic institution can appraise itself on her performance – whether she is capable of occupying that office”.

Against a background of a series of bungles by Mkhwebane, which earned her adverse court judgments and her legal reasoning being questioned, Organisation Undoing Tax Abuse (Outa) executive director advocate Stefanie Fick said Ramaphosa – despite being empowered by law to suspend her – “chose to offer Mkhwebane an opportunity to explain herself, quite generous”.

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Wits University law lecturer Shadi Maganoe said: “The president may at any time during these proceedings suspend the public protector from office.

“The proceedings of the removal trigger Section 194(3) of the constitution, which allows the president to suspend the public protector from office during this process or prior to the committee reaching a resolution.

“The president is thus acting within his constitutional powers in terms of Section 194 (3) to ask the public protector to provide reasons as to why she should not be suspended, pending the resolution of the committee.”

In a letter to Mkhwebane, Ramaphosa wrote: “It would therefore now be appropriate to consider whether or not you ought to be suspended, pending finalisation of the committee’s work.

“I therefore hereby ask you to provide me with reasons why I should not exercise my powers in terms of Section 194(3)(a) of the constitution, in writing.”

Mkhwebane was consulting with her lawyer, said her spokesperson, Oupa Segalwe.

Fick said Mkhwebane’s nose had been “bloodied on so many occasions, with the last being at the Constitutional Court where her challenge was shot down – something quite serious”.

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On what went wrong, Fick said there was more than one court judgment proclaiming she did not know what her constitutional obligations were “or she simply ignored them”.

“It boils down to the fact that she is unable to deal with investigations impartially – looking at all the facts.

“You cannot have a Chapter 9 institution with a cloud hanging over its head. She has only been looking after high-profile cases, when she is supposed to be the voice of the little guy who is not in the public sphere.”

Since her appointment in 2016, Mkhwebane has had a challenging tenure, with her reports challenged in various courts and adverse findings made against her.

These included:

• The Absa-Bank-orp matter, in which the Constitutional Court in July 2019, upheld a High Court in Pretoria ruling, finding Mkhwebane was dishonest in her investigation into the apartheid-era loan by the South Africa Reserve Bank (SARB) to Absa in the ’80s.
• The Estina dairy farm, in which in August 2019, the High Court in Pretoria reviewed and set aside her report and remedial action, finding she had failed in her duties to properly investigate.
• The South African Revenue Service (Sars) “rogue unit“, in which in December 2020, her report was set aside by the High Court in Pretoria.
• The CR17 campaign funds, in which a full bench of the Constitutional Court in December 2020, reserved judgment in her appeal of a High Court ruling.