The Constitutional Court ruled in a unified judgment against Public Defender Busisiwe Mkhwebani in three cases related to her suspension. The court has also placed a personal costs order on Makhibani in connection with the case she has brought before the court, which means she will pay part of the total court fees in her personal capacity.
The ruling came from cases heard in the Western Cape Division of the High Court which were appealed by President Cyril Ramaphosa, the Democratic Alliance and Mkhwebani herself. The Speaker of Parliament was also cited in the preliminary case, along with the Chair of the Article 194 Committee, Richard Dianti, and all political parties represented in the National Assembly.
Prior to delivering the judgment, Deputy Chief Justice Mandisa Maya recalled the complex background that led to the three cases being brought to court.
In February 2022, the parliament decided to proceed with consideration of a motion to remove Mkhoebani by setting up a committee in accordance with Article 194 of the constitution. The process had previously been held up by a legal challenge in which ConCourt ruled that the leader of a Chapter 9 institution could have legal representation during impeachment proceedings in Parliament.
In March 2022, Ramaphosa informed Mchoibani of his intention to suspend her and asked her to provide reasons why he should not do so. Mkhwebani said there were “multiple instances of conflict of interest, which prevented the president from personally suspending her.”
“The alleged conflicts of interest involved various investigations recently conducted or currently being investigated by the Office of the Public Defender against the President. In response, the President, through the State’s Attorney General, informed the Public Defender that he would act personally and did not consider himself disqualified to do so, Maya also indicated in the judgment.
Three months later, Mkhoebani was suspended by Ramaphosa. She made the decision to review, attacking the timing of his decision and saying it was biased by her office’s investigation of him.
Mkhwebani has argued that it has received a number of complaints related to Ramaphosa, including one about a CR17 investigation involving campaign funds used in his 2017 bid for election as ANC president, and an investigation into funds held at his Vala Vala ranch, which would result in biased behavior
The Supreme Court concurred with Mkhuebani on this basis, finding that there was “prejudice or reasonable apprehension of bias on the part of the President, which precluded him from exercising the power to suspend her personally”.
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“The Supreme Court took into account that the Public Defender had previously concluded by this Court that he did not have an open and inquiring mind when investigating the President, and that it was unduly suspicious of him. The President had to deal with the response, on rather short notice. What, to the 31 expanded questions about an accident that occurred two years ago,” Judge Maya remarked.
“Suspension of the Public Defender, in the opinion of the Full Court, would be a means of delaying the investigation into the Vala Vala complaint. In the Full Court’s view, the President may have concluded that he “was better off with anyone but[Mkhwebani].” The (Higher) Court further found that The chain of events that led to the suspension is significant.”
The comment is justified
However, in the unanimous ruling, ConCourt found that the Supreme Court’s reasoning was flawed. Both the DA and Ramaphosa argued the decision to suspend Mkhwebane was not premature, saying Parliament had already begun an investigation into her conduct in March 2023.
“The power that comes with public office comes with responsibilities, and public office holders who hold positions of supreme authority must be held accountable in the exercise of their powers. The constitution contains an internal checks and balances mechanism for a public defender who falls short of the responsibilities that come with her office,” Maya said.
She added that Article 194 of the Constitution defines the framework for accountability of the public defender.
“These provisions give the president the power to impose preventive suspension to protect and maintain the office during the investigation. In deciding on suspension, he is required to consider the need to preserve the integrity of the office, the need to prevent interference with the disciplinary investigation and the need to allow the incumbent to defend himself.”
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Maya added that “justifications for the prudential comment are present in this matter” because ConCourt had reached “extremely adverse findings of credibility against” Mkhoebani.
“Moreover, an independent commission found prima facie evidence of incompetence on its part based on a number of repeated cases, including what it described as grossly overstepping and exceeding the limits of its powers in relation to the Constitution by unconstitutionally narrowing Parliament’s exclusive power when Justice Maya said. : “I have directed her to begin the process of amending the Constitution.”
The independent commission also found prima facie evidence of misconduct in the sense of willful or grossly negligent failure to meet the standard of conduct expected of a holder of public office in a number of cases, including her insistence on complying with a subpoena and bullying sham investigative goals despite a judicial challenge.
“The Independent Commission concluded that the charges require investigation and could, if proven, lead to the dismissal of the Public Defender,” Judge Maya said.
The court also found that the suspension removed the risk of Mkhuebani interfering with the Article 194 investigation by ensuring that she could not access records or conceal documents.
“The cumulative effect of all these factors shows that the decision to suspend the Public Defender was, on the merits, the only possible logical outcome. In any case, the President’s decision to suspend her work cannot be said to have been illogical, even if there were other rational avenues open to him. .
The court added that work in the public defender’s office could continue under the supervision of the deputy public defender, attorney Julica Gkalka.
do not oppose
ConCourt also found that the mere risk of a conflict of interest would not prevent Ramaphosa from acting against Mkhoebani.
Judge Maya said the court considered the “essential elements of conflict between official responsibilities and private interests” which are official responsibilities, private interests and the risk of a conflict between these two issues, along with behavior that puts the official at risk. .
“The mere fact that he is being investigated by the Public Defender cannot create a reasonable apprehension of prejudice or, depending on my approach, a risk of conflict between his official responsibilities and his private interests.
“As the DA rightly argues, suspending a public defender is not a power that the president can exercise without safeguards; it is a power that is severely restricted and has no practical effect on investigations by the public defender’s office,” Judge Maia said.
She added that even with Mkhoebani suspended, investigations into Ramaphosa would continue.
“The acting public defender, who was not shown to be incompetent or lacking in independence, diligently pursued the investigation and insisted on answering the 31 questions the public defender put to the president, which were then submitted,” it said. .
Judge Maya said there was no evidence of any “impulsive” or “retaliatory” behavior by Ramaphosa, who corresponded with Mkhoebani for several weeks before deciding to suspend her.
“But as for the late appearance of the complaint of Vala Vala, no one could have suggested anything sinister about the schedule,” she said.
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The court found that there was no need to issue a cost order against Mkhoebani in connection with the Ramaphosa and Daa cases. However, it said Mkhwebani’s case was an “unnecessary demand” and ordered her to pay for that application in her personal capacity.
Mkhuebani’s term is due to end in October, and parliament has already begun Find a replacement for it.
The investigation into her conduct was bogged down by the issue of her legal representation. Parliament intends to interview the selected candidate in August. DM