Public Protector Busisiwe Mkhwebane’s legal team have through a letter highlighted President Cyril Ramaphosa’s conflict of interest regarding her proposed suspension.
The letter came just under a week after Ramaphosa said Mkhwebane must provide him with reasons why he should not suspend her.
Her lawyers pointed out that Ramaphosa should not be involved as he was currently being investigated by Mkhwebane’s office with further investigations taking place where he is implicated.
“Irrespective of the numerous grounds why the suspension would be illegal and inappropriate on the merits, which will be dealt with in separate response, the president is not legally entitled or competent to take any steps, including the said letter, in the pursuance of section 194(3)(a) of the Constitution,” read the letter.
The letter affirmed that Ramaphosa was personally and heavily conflicted in multiple ways as he was being investigated, or currently being investigated, for allegations of breach of ethics and/or violations of the Constitution.
“In that connection, it would be convenient to refer you to, or to remind you of, your own concession made under oath in respect of the so-called Bosasa matter. Bosasa has also been recently identified in the Zondo commission report as a key conduit for the crimes of corruption and/or money laundering, to mention but a few,” added the letter.
The letter went further to discuss more matters that Mkhwebane was investigating, including the utterance of the misuse of funds by ANC politicians, allegations by Ramaphosa and Justice Minister Ronald Lamola in their joint pursuit of judicial capture.
The lawyer continued to give constitutional reasons why he should not be involved citing section s96(2)(b) which states that members of the Cabinet may not act in any way that is inconsistent with their office, or expose themselves to any situation involving their official responsibilities or private interests.
This means the letter sent to Mkhwebane was unlawful and unconstitutional and must be withdrawn and not implemented, and Ramaphosa should step away from the process.
“Please indicate your urgent response by no later than 4.30pm on March 23, failing which urgent court proceedings will be instituted,” read the letter.
A deadline Ramaphosa has failed to meet, with her lawyers saying that this would result in Mkhwebane reserving all her rights, including her right to respond to the merits of why she should not be suspended.
“We are further instructed that you furnish us with an undertaking that no suspension will be implemented before the hearing and finalisation of the envisaged urgent application.
“This will obviously determine the date on which the application will be set down, failing which the matter will most likely be set down on or before April 4,” said the letter.
Tyrone Seale, acting spokesperson for President Cyril Ramaphosa, told The Star that they had no comment to add other than the statement issued by the Presidency on this matter on March 18 in which Ramaphosa asked the public protector to give reasons why she should not be suspended.
He said that he wanted her to provide him with reasons why he should not exercise his powers in terms of Section 194(3)(a) of the Constitution, in writing, within 10 working days of the date of the letter.
The section states that “the president may suspend a public protector, auditor-general or a member of a commission established in terms of Chapter 9 of the Constitution from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person”.