Cape Town - The Western Cape High Court heard on Tuesday that there was no risk of conflict of interest in the investigation into the Phala Phala ‘Farmgate’ scandal when President Cyril Ramaphosa suspended Public Protector Busisiwe Mkhwebane.
Arguing before a full Bench, Ramaphosa’s legal counsel, Karrisha Pillay, said the question was whether there was a risk of a conflict of interest between Ramaphosa’s official responsibilities and his private interests.
“I have to concede the private interest is at stake. We submit at the level of legal principle that there is no risk because of what the Public Protector Act provides,” Pillay said.
However, she said the truth of the matter was that the president was co-operating fully with the investigation.
“There is no evidence to contradict this statement in that regard,” she said.
Pillay said the question before the court should be whether it could be said that because there was a new investigation in relation to Ramaphosa, that that gave rise to a conflict of interests.
“The court should have regard to the history of this matter on the timeline,” she said.
Ramaphosa’s legal counsel informed the court that the president had received a letter from the National Assembly on March 10, and then gave Mkhwebane the opportunity to make representations on a possible suspension.
“The public protector was fully apprised of the fact that the president could exercise that decision from the date on which the audi alter am partum letter was sent. She therefore sought undertaking to stop or halt that.
“We submit that against that timeline, it can’t be said that, because the new investigation against the president was started on June 7, made public in June and the president then issued a letter of suspension on June 9, it is a rushed job in response to that,” Pillay told the court.
But Judge Gcinikhaya Nuku said the disqualifying factor was that members of the Cabinet could not act in a manner that exposed them to any situation involving the risk of official and public interests.
In response, Pillay said the critical question was what the factors were that evidenced the risk.
Pressed to confine herself to the Phala Phala saga, Pillay said the Public Protector Act provided for the president to choose an acting public protector and to suspend Busisiwe Mkhwebane.
“If the Public Protector Act did not make a provision for continuance of it (the office of the public protector) in the way it did, one could understand the basis of concern for risk of conflict. There is no basis for it,” she said.
However, Judge Matthew Francis said the fact that the risk was mitigated was a different issue, and that there could be an acting public protector and the inquiry could be continued did not obviate there being a risk.
Pillay said the president has no say in relation to the acting public protector.
“It can’t be used to present any risk of that power exercised to in order to advance a private interest in order to benefit him in any way. One has to have regard to the timeline on Phala Phala, statutory provisions … There is no risk of conflict as contemplated,” she added.
DA legal counsel Steven Bundler said Ramaphosa had initiated suspension proceedings in March, almost three months after the Phala Phala scandal broke, and Mkhwebane made her representation in May before former State Security Agency head Arthur Fraser laid a criminal complaint.
“Merely because of an intervening event nobody knew about, now we are told the suspension is purely retaliatory and is to get rid of the public protector from the investigation,” Bundler said.
He said that based on the chronology of events, Ramaphosa was free of bias and retaliation, and was just doing his job.
Advocate Dali Mpofu, the legal counsel for Mkhwebane, said Pillay conceded to the private interest issue.
“The private interest not only relates to the Phala Phala problem. The private issue relates to the Bosasa matter. In fact, all conflict issues except one,” Mpofu said.
He charged that there had been an unfriendly response in the form of a premature and illegal suspension when Mkhwebane sent Ramaphosa questions.
Judgment was reserved.
Cape Times