Ramaphosa should take decision on Mkhwebane suspension as 'swiftly as possible' - DA

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Public Protector Busisiwe Mkhwebane
Public Protector Busisiwe Mkhwebane
Jan Gerber, News24
  • The Democratic Alliance says President Cyril Ramaphosa should do what the Constitution demands and take a decision on Busisiwe Mkhwebane's suspension. 
  • Mkhwebane is taking Ramaphosa to court to force him to withdraw his intention to suspend her. 
  • Mkhwebane argues that the president is conflicted. 

The DA has urged President Cyril Ramaphosa to withdraw his undertaking to delay his intention to suspend Public Protector Busisiwe Mkhwebane.

DA lawyers wrote to Ramaphosa saying he should do what the Constitution demanded and take the decision as swiftly as possible after Mkhwebane makes her submissions on the intention to suspend. 

"To do anything else is an unjustifiable abdication of his constitutional responsibilities. If the president insists on postponing his decision, it should be for a truly urgent application that should be heard next week or the week thereafter. There is absolutely no justification for the exorbitant delay adv. Mkhwebane has demanded, and the president is entertaining," said the party.

Last week, Ramaphosa rejected Mkhwebane's request that he should withdraw his intention to suspend her because he was not "legally entitled or competent to take any steps" against her based on the president's "actual, potential or reasonable perceived conflict of interest".

Ramaphosa agreed to meet Mkhwebane in court.

Mkhwebane planned to file her court application this week.

She had also provided the president with a timeline of when other papers would be filed and when the case would be before a full court. 

Over a week ago, Ramaphosa wrote to Mkhwebane asking why he should not suspend her in terms of the Constitution.

READ | Public Protector impeachment: Mkhwebane appeals to ConCourt again to rescind judgment

This, after National Assembly Speaker Nosiviwe Mapisa-Nqakula had informed the president that Parliament was continuing with Mkhwebane's impeachment proceedings, which could allow the head of state to suspend her.

The DA, in its letter to Ramaphosa, said it agreed with him that he was "not conflicted".

"The president has already concluded that he is not conflicted. The DA agrees with his position and his reasons. The supposed conflict is used as a ruse by the public protector to avoid accountability. But even if the president is conflicted, that is no basis to delay a decision on suspension. The courts do not exist to advise the president.

"The president has taken legal advice and concluded he is not conflicted. He must now act on that advice - he cannot wait for a court to confirm whether his advice is correct. If the public protector wants to interdict him from acting, she is free to try; but the president should not be complicit in using the courts to second-guess his own legal advice," the party said.

The party also said there was no basis for Ramaphosa not to decide whether or not to suspend Mkhwebane as soon as possible.

It said: 

The president's power to suspend her has been triggered. He has a constitutional obligation to decide. That obligation must be exercised 'diligently and without delay'. Adv. Mkhwebane's desire to litigate, or even the launching of litigation, in no way, prevents the president from acting, or detracts from his duty to act without delay.

The DA added that allowing Mkhwebane the "luxury of meritless pre-decision litigation" would delay the determination of whether she should be suspended.

"On her timetable [court application timeline] it will delay it until at least the end of April, and possibly significantly longer as the parties will have no control over how long the court will take to give judgment."

It said the only basis on which Mkhwebane claimed the Section 194 committee should delay its work, was her rescission application in the Constitutional Court.

ALSO READ | ConCourt made 6 'errors' in ruling, says Mkhwebane in latest bid to halt her impeachment

"But it is basic law that the mere launching of a rescission application does not suspend the operation of the underlying order. There are zero prospects that a court will require the committee to halt its work until that rescission application is determined. The rescission application is, in any event, entirely without merit."

It said multiple courts had found that Mkhwebane was dishonest and incompetent and the National Prosecuting Authority intended to charge her with perjury.

The party added that "every day that she remains in her position while those charges are assessed by the National Assembly undermines the integrity of the office".

The DA said: 

There is also a more direct need for an urgent decision. The public protector forms part of a panel that will interview people for appointment as commissioner on the Electoral Commission. The panel will hold interviews on 1 April 2022. A compromised public protector will compromise those proceedings.

"The DA has written to the chief justice, who chairs the panel, to ask that he postpone its work until a decision is taken on suspending the public protector. However, the current commissioner's term ends on 16 April 2022, so the panel's work cannot be delayed indefinitely."

The DA said as there was not yet any agreement between the parties, the president should withdraw his undertaking to delay his decision. 

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