The president has no problem in recusing himself from proceedings to determine the Public Protector’s fate
President Cyril Ramaphosa plans to recuse himself from any involvement in Parliament’s probe into the fitness of Public Protector Busisiwe Mkhwebane to hold office.
Although the president is not a Member of Parliament and would, therefore, not deliberate on the matter, he could be required to exercise his powers to suspend the Public Protector once the probe gets under way, and dismiss her if she is found to be unfit.
In an explanatory affidavit filed last week at the Cape Town High Court in response to Mkhwebane’s court bid for an interim interdict against Parliament, Ramaphosa said he neither supported nor opposed the application.
However, he said that there was potential conflict of interest owing to ongoing litigation between him and Mkhwebane over the Bosasa report relating to his 2017 ANC presidential race campaign.
National Assembly Speaker Thandi Modise and the DA, which initiated the process, are the only ones out of 22 respondents who are opposing Mkhwebane’s application.
BAD FAITH AND CORRUPT MOTIVES
Ramaphosa has asked that the court review and set aside the adverse findings against him, which include that he misled Parliament in an answer to former DA leader Mmusi Maimane in November 2018 regarding a R500 000 donation to his election campaign by late Bosasa chief executive Gavin Watson.
Ramaphosa said the money was for a business deal between Watson and his son, but later sent a correction.
Mkhwebane is opposing the application and the matter was heard before the Pretoria High Court in Pretoria on February 4.
Mkhwebane filed court papers earlier this month seeking to interdict the parliamentary process and set aside the rules that will guide the hearings.
She argued that she would “suffer the prejudice of being subjected to the process conducted in terms of unlawful rules and may also be suspended by the president in terms of the same rules, which I firmly belive are unlawful and unconstitutional”.
She stated that Ramaphosa could be “driven by bad faith and corrupt motives” and that she had a reasonable “fear that the president may have a perverse interest in removing me before the hearing of the Bosasa matter”.
“Even if the suspension itself does not materialise, the idea of causing me to be working under a dark cloud of suspicion will have been achieved if the process is dragged on for much longer.”
Public Protector Busisiwe Mkhwebane
Mkhwebane said that if the Parliamentary inquiry went ahead it would be when “some of the most sensitive cases involving the members of the executive – the president personally and his alleged political allies – would be in the process of being decided”.
RAMAPHOSA HITS BACK
While conceding to the possibility of a conflict of interest and suggesting that he may delegate a Cabinet minister to assume his presidential powers in relation to the matter, Ramaphosa hit back at Mkhwebane.
He charged that Mkhwebane “unjustifiably, unnecessarily and without foundation describes me as compromised, suggests that I will be driven by bad faith and corrupt motives, and claims that I have a perverse interest in removing her from office.
“These are some of the examples of defamatory and inflammatory language employed by the Public Protector in her application. It is plainly uncalled for and is unbecoming of an incumbent of such an important office of our land.”
He also said that Mkhwebane “misrepresents her adverse findings against me”, seemingly “in an endeavor to bolster her case”.
He disputed Mkhwebane’s assertion that her adverse findings, on their own, were sufficient grounds to support the allegation of a conflict of interest, but agreed that the litigation between him and the Public Protector had the potential to undermine the integrity and legitimacy of the Constitution.
“What sets this matter apart and gives rise to the conflict of interest is that there is pending litigation that is under way between the Public Protector and I, which is unlikely to be resolved by the time that the proceedings under the impugned rules commence,” Ramaphosa noted.
He said he could “respectfully say and accept that a potential conflict of interest arises from pending litigation between the Public Protector and I – not the findings against me”.
However, “it is the pending litigation before the Pretoria High Court that would finally resolve the actual or potential conflict of interests relied on by the Public Protector”.
DELEGATION OF POWERS
The president said the Constitution enjoined him “to avoid a conflict between my official responsibilities and private interests.
“I therefore readily accept that it would not be appropriate for me to exercise any constitutional power conferred on me in circumstances where there is a conflict of interest.”
Ramaphosa wants to be allowed to delegate a member of his Cabinet to execute those duties that he could be barred from performing owing to the possible conflict.
“The scheme of the Constitution is such that if I find myself in a situation where I have a conflict of interest in relation to the possible exercise of a constitutional power.
“I may delegate the responsibility or the exercise of such power to another member of the Cabinet.”
He said an order that the court handed down in relation to Mkhwebane’s application must be clear that it operated against him personally, and would not affect his authority to delegate the exercise of the power to “another member of Cabinet who is not tainted by a similar conflict of interest”.
Mkhwebane’s office said on Saturday that it welcomed Ramaphosa’s concession that a conflict existed, and that he is prepared to delegate his powers to a member of Cabinet.
Oupa Segalwe, spokesperson for the Public Protector’s office, said the frank admission was exemplary.
“It is of utmost importance to all South Africans that when the process of removal is duly carried out the courts will have been allowed to pronounce on the key question of the constitutional validity of the new rules.”