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WRAP | Case for Mkhwebane's suspension was 'overwhelming' - Ramaphosa advocate

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24 November 18:30

Judgment is reserved. The court adjourns.

- Jan Gerber

24 November 18:28

Ngalwana is done, but Mpofu wants to speak again.

- Jan Gerber

24 November 18:28

Ngalwana says he explained that Ramaphosa could have disclosed his answer to the Public Protector on Phala Phala "under a cloak of secrecy".

- Jan Gerber

24 November 18:26

Mpofu is asked to conclude after his extra 15 minutes.

- Jan Gerber

24 November 18:19

Mpofu says whatever happened between 7 and 9 June (Phala Phala) happened on top of the other conflicts of interest.

- Jan Gerber

24 November 18:14

Mpofu's last point: He says the power of suspension is not compulsory. The Constitution uses the word "may" he says.

- Jan Gerber

24 November 18:12

"We can't manufacture defences for the president," says Mpofu.

- Jan Gerber

24 November 18:12

Mpofu's "strictly 15 minutes" are done, but he is still going strong.

- Jan Gerber

24 November 18:08

Mpofu says there is no provisions in the sections for a president or premier's impeachment for their suspension.

- Jan Gerber

24 November 18:07

Mpofu says the Constitution enjoins the president and everyone to protect the independence of the Public Protector.

- Jan Gerber

24 November 18:01

Mpofu says the Western Cape High Court did not exonerate Ramaphosa from the other conflicts of interest.

- Jan Gerber

24 November 18:00

Mpofu says the standard in the Constitutional Court is a balance of probabilities. He says courts are here to draw inferences from objective facts and make a decision.

- Jan Gerber

24 November 17:53

Mpofu has "strictly 15 minutes" to respond.

- Jan Gerber

24 November 17:50

Budlender Sr says Ramaphosa couldn't suspend Mkhwebane on 26 May, when he received Mkhwebane's representations, because he first had to apply his mind and consider her submissions.

- Jan Gerber

24 November 17:47

Budlender Sr says Mpofu's argument that Ramaphosa shouldn't have written his letter to Mkhwebane on 17 March, because the proceedings haven't started, isn't relevant, because the Constitution doesn't say when you may not write letters, but when you may suspend.

- Jan Gerber

24 November 17:45

Budlender Sr, for Ramaphosa, says like the DA, they don't understand how Mpofu could say they didn't lay a basis for direct appeal to the Constitutional Court.

- Jan Gerber

24 November 17:45

Budlender Jr concludes.

- Jan Gerber

24 November 17:40

Budlender Jr says there is no evidence that a just and equitable order would require Mkhwebane to go back to work.

- Jan Gerber

24 November 17:35

Budlender Jr says Mpofu's argument that the Public Protector could only be suspended once the evidence is being led, makes "no sense at all". 

- Jan Gerber

24 November 17:26

Budlender Jr says it is striking from Mpofu's arguments that there is no substantive explanation on what made Phala Phala any different from the other complaints against Ramaphosa.

- Jan Gerber

24 November 17:19

Budlender says it is self-evident that it is a matter of constitutionality.

- Jan Gerber

24 November 17:19

Budlender Jr says the test is not what the Western Cape High Court judges thought, the test is objective.

- Jan Gerber

24 November 17:18

Budlender Jr says it is "extraordinary" that Mkhwebane asks the Constitutional Court to say nothing.

"It is bad in law, and it is bad in principle."

- Jan Gerber

24 November 17:17

Ngalwana concluded. Budlender Jr will now respond.

- Jan Gerber

24 November 17:09

Ngalwana says for Ramaphosa to have the "audacity - I use the word with respect, perhaps I should say confidence" to drop the guillotine on 9 June couldn't have been a coincidence.

-Jan Gerber

24 November 17:06

Ngalwana says that Ramaphosa started the process on 17 March and gave Mkhwebane several extensions, doesn't nullify the fact that the president can't act in his personal interest once a single event occurs.

He says it cannot be accepted that it was a mere coincidence that Ramaphosa decided to suspend Mkhwebane on 9 June.

"What was the rush for him to act on that particular day?" says Ngalwana.

-Jan Gerber

24 November 17:02

Ngalwana agrees that context is everything in law.

- Jan Gerber

24 November 16:58

One of the Justices asks Ngalwana about the extensions Ramaphosa gave Mkhwebane to provide her submissions on why she should not be suspended.

"Context is critical," says the justice.

- Jan Gerber

24 November 16:57

Ngalwana says if you remove the Public Protector, you have "messed, to use the colloquial term" with the Office of the Public Protector.

This is in response to the argument that when Mkhwebane is suspended, the investigation into Phala Phala would continue under the leadership of the acting Public Protector.

- Jan Gerber

24 November 16:48

Ngalwana says with the Constitutional Court's ruling on the state capture report, we learned that the president's rights are not sacrosanct. 

- Jan Gerber

24 November 16:44

Ngalwana says Ramaphosa exposed himself to a risk of conflict of interest, the risk doesn't have to materialise.

- Jan Gerber

24 November 16:43

"We come to court to vindicate the constitution," says Ngalwana.

- Jan Gerber

24 November 16:42

"The president seeks to evade accountability," says Ngalwana.

-Jan Gerber

24 November 16:42

COMMENT: Ngalwana again says Zuma didn't suspend Madonsela.

What he is not saying, is that Parliament didn't institute removal proceedings against Madonsela, as is the case with Mkhwebane.

- Jan Gerber

24 November 16:41

Ngalwana says the "trigger" for her suspension was Mkhwebane sending the questions to Ramaphosa.

"There is no other plausible explanation," says Ngalwana.

- Jan Gerber

24 November 16:40

Ngalwana says Mkhwebane sent the questions to Ramaphosa on 7 June.

On the following day, she announced publicly that she was investigating him and on the 9th he suspended her.

On 10 June, the Western Cape High Court handed down its verdict on Mkhwebane's application to interdict a suspension.

- Jan Gerber

24 November 16:38

"Is it because those 31 questions posed by the Public Protector cut to close to the bone?" says Ngalwana.

He says Mkhwebane's suspension was "sudden".

- Jan Gerber

24 November 16:37

Ngalwana says at the heart of this case lies the same breach by a different president, as there was in the Nkandla.

He says Ramaphosa has done to Mkhwebane what former president Jacob Zuma didn't do to former Public Protector Thuli Madonsela.

- Jan Gerber

24 November 16:32

Ngalwana refers to the Nkandla ruling - he says it entrenched the centrality of the Public Protector in South Africa's constitutional democracy.

He says it applies to the person of the Public Protector, not the office.

- Jan Gerber

24 November 16:28

We resume.

Advocate Vuyani Ngalwana SC, representing the UDM, ATM and PAC, will now argue in support of Mkhwebane.

He says all South Africans have an equal right to the protection of the law.

He says few cases have been as polarising as cases involving the Public Protector.

- Jan Gerber

24 November 16:12

Mpofu says the Constitutional Court should not even entertain the DA's suggestion that - if Ramaphosa is found to be biased - Mabuza should decide whether Mkhwebane should be suspended.

- Karyn Maughan

24 November 16:04

COMMENT: Mpofu is deliberately ignoring the damning evidence of misconduct and incompetence against Mkhwebane - and instead claiming that she was only suspended because she investigated the Phala Phala scandal.

He also accuses Ramaphosa of disrespecting the courts because he suspended Mkhwebane prior to the High Court ruling on her suspension challenge (which he was entitled to do, because there was no interdict barring him).

This is ironic - given Mpofu's arguments that judgements are merely opinions and his apparent refusal to accept any ruling that goes against him, even to the point of seeking reconsiderations of rescission dismissals.

Karyn Maughan

24 November 15:57

Mpofu says suspending someone while you know a judgment is coming, is defying the courts, and no court should tolerate that.

- Jan Gerber

24 November 15:57

Mpofu was given 1 hour 45 minutes to make his argument. He is now on 2 hours 43 minutes. No other counsel has been given this amount of additional time.

- Karyn Maughan 

24 November 15:56

Mpofu says Mkhwebane's "only sin" was to investigate Ramaphosa, as she is supposed to do.

- Jan Gerber 

24 November 15:51

Mpofu tries to argue that Ramaphosa was "forum shopping" by suspending Mkhwebane, which resulted in him being investigated by Acting Public Protector Kholeka Gcaleka. Maya responds that the point of forum shopping is to achieve a benefit. What benefit would Ramaphosa have achieved by being investigated by Gcaleka, she asks. Mpofu responds that Ramaphosa's crime lay in his "gamble". He is not suggesting that Gcaleka is not doing a proper investigation into Phala-Phala.

- Karyn Maughan 

24 November 15:40

Mpofu says the "allegation" that Ramaphosa cooperated with the Phala Phala investigation "isn't uncontested". He says the mischief was that Ramaphosa was illegally cherry picking who should investigate him.

Deputy Chief Justice Mandisa Maya asks what benefit Ramaphosa would get from the Acting Public Protector investigating him instead of Mkhwebane. Mpofu says the "crime here" is in gambling by ensuring that Mkhwebane doesn't investigate him.

- Jan Gerber 

24 November 15:39

Tshiqi asks Mpofu what the court should make of evidence that the Acting Public Protector is continuing the Phala-Phala investigation and has even expanded the investigation team. This would seem to undermine arguments that Mkhwebane was suspended because she sent the President questions about Phala-Phala.

- Karyn Maughan 

24 November 15:31

Deputy Chief Justice Mandisa Maya asks Mpofu about Budlender Sr's argument that Ramaphosa's letter suspending Mkhwebane had been drafted in the days prior to her sending Phala-Phala questions - evidence that would cast doubt on the Public Protector's complaint that her suspension was improperly motivated by the Phala-Phala probe. Mpofu says this claim is 'obfuscation' and accuses the President of deliberately failing to give specific time frames for when the letter was written.

- Karyn Maughan 

24 November 15:17

Mpofu says something as "monumental as the Phala Phala investigation" cannot be wished away.

- Jan Gerber 

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A Section 89 panel headed by former chief justice Sandile Ngcobo found President Cyril Ramaphosa has an impeachable case to answer on the Phala Phala scandal.
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