Cape Town - The battle to have public protector Busisiwe Mkhwebane returning to work is set to intensify this week as the African Transformation Movement (ATM) said it was preparing to fight the “unholy alliance” of the DA and President Cyril Ramaphosa from blocking Mkhwebane’s comeback.
The party’s spokesperson Sibusiso Mncwabe said since his organisation was party to the litigation involving the Western Cape High Court ruling that set aside Mkhwebane’s suspension by Ramaphosa, he had received papers indicating that Ramaphosa entered the “purported appeal” despite the court’s articulation of his conflict of interest and improper involvement in the matter.
A full Bench of the Western Cape High Court ruled that Ramaphosa’s decision to suspend her was invalid and ‘improper’ – after she sent him questions about the Phala Phala break-in. The court set aside Ramaphosa’s decision to suspend her as unlawful.
Mncwabe also said it was more concerning that acting public protector Kholeka Gcaleka has joined Ramaphosa and the DA in their “unholy bid” to keep Mkhwebane from returning to office.
“It is now clear that there is collective effort on the part of the DA, Ramaphosa and the deputy public protector to do anything to shield Ramaphosa from accountability over the Phala Phala scandal. The ATM is therefore instructing its lawyers to file court papers to fight this unholy alliance,” he added. Ramaphosa filed his notice of intention to oppose Mkhwebane's application to return immediately to work.
In a letter to Judge Lister Gcinikhaya Nuku, assistant state attorney Mark Owen said Ramaphosa was preparing an application for leave to appeal to the Constitutional Court against the order of the Western Cape High Court that declared-Mkhwebane’s suspension invalid.
Owen said given the nature of the relief sought and the complexity of the legal issues, they required time to prepare a comprehensive answering affidavit as well as heads of argument.
“In addition, our legal team is unavailable on Tuesday, September 13, 2022,” he said.
Owen indicated that given the notice on which Mkhwebane’s urgent application had been brought and the truncated time periods granted to the respondents to prepare answering papers, it was unlikely that a new team could be brought on board timeously to deal with the matter.
“We are therefore of the respectful view that it would be in the interests of justice and in the interests of the orderly further conduct of these proceedings for the hearing to take place on a date that accommodates our concerns (possibly 16 September, 2022).”
Owen said the short postponement of the hearing date would not prejudice Mkhwebane in any way, and that the short time frame to file papers would not afford the respondents a fair opportunity to participate fully or at all in the hearing of the urgent application.
“The prejudice to our client, the president, in having to assemble a new legal team in a matter of hours in order to meet Adv Mkhwebane’s truncated timetable is profound and unwarranted,” he said.
Meanwhile, UDM leader Bantu Holomisa wrote to Section 194 Committee chairperson Qubudile Dyantyi on Monday asking him to postpone the inquiry’s hearings scheduled for Tuesday and Wednesday.
Dyantyi is chairing a committee established to determine Mkhwebane’s fitness to hold office. Holomisa said the impeachment hearings must be stopped pending the finalisation of the litigation.
“I wrote to the chair of the inquiry asking him to stop this thing. “We are busy responding to the papers,” Holomisa told Cape Times.
In his letter to Dyantyi, Holomisa said the UDM’s attorneys informed him that Ramaphosa had joined the DA in opposing Mkhwebane’s application to enforce the judgment setting aside her suspension.
“That application will be heard either tomorrow or on Friday as proposed by the president. As a result, I am called upon to consult with our lawyers for this week.
“It will therefore be impossible for me to prepare for and participate in the committee hearings scheduled for this week,” he said.
“Please take the necessary steps to postpone this week’s sitting to a later date as suggested last week by the legal team of the public protector when he addressed the inquiry,” Holomisa wrote.
He said the Western Cape High Court should be allowed to finish the case after the damning judgment found Ramaphosa was conflicted in suspending Mkhwebane.
“In actual fact, if we were to stick to the principle of fairness, we should postpone these Section 194 hearings pending the finalisation of this latest appeal by the president and DA on the latest court judgment,” Holomisa added.
He told Cape Times that his letter was reinforcing Mkhwebane’s legal counsel, Advocate Dali Mpofu, when he told the committee last Saturday that “we might have a problem particularly with Tuesday” as they might be in court on some urgent matter.
“There is a real possibility of not being able to do anything this week.
“At worst we can squeeze Wednesday. It is a matter beyond our control,” he said.
Dyantyi said Tuesday and Wednesday would be the subject of discussion between Mpofu and the evidence leaders.
Spokesperson in the public protector’s office, Oupa Segwale, said the ATM’s conduct was “perceived as interference. Such interference is outlawed by the Constitution”.
• Additional reporting by Nicola Daniels
Cape Times