President Cyril Ramaphosa didn’t risk a conflict of interest in the investigation into the alleged cover-up of a theft at his Phala Phala game farm when he suspended impeached Public Protector Busisiwe Mkhwebane, the Western Cape High Court has heard.
This was the argument of his counsel, advocate Karrisha Pillay, SC, on Tuesday during Mkhwebane’s application to have her suspension declared unlawful and to scupper the parliamentary removal process against her.
On Monday, Mkhwebane’s counsel, advocate Dali Mpofu, SC, argued that the Public Protector was investigating six cases against Ramaphosa – including the Phala Phala saga – and that it constituted a conflict of interest that precluded Ramaphosa from suspending her. He said the suspension came days after she started an investigation into the Phala Phala theft.
But, according to Pillay, in terms of Section 96 of the Constitution, the risk of a conflict exists if the president derives a private benefit from exercising an official duty.
She said the only one of the cases involving Ramaphosa’s personal interests was the Phala Phala matter.
She also pointed out that the Public Protector Act required the Deputy Public Protector to fulfil the functions of the Public Protector in the event that she became unable to do so.
Acting Public Protector Kholeka Gcaleka stated that the office’s investigations would continue, the court heard.”There is no suggestion the Acting Public Protector won’t execute her duties,” Pillay added.
In those circumstances, the risk of a conflict between the official duties and private interests didn’t exist.According to Pillay, Ramaphosa also agreed to cooperate with the investigation.
“There is no evidence before this court to contradict the president’s statements,” she added. Ramaphosa sent Mkwhebane a letter on 18 March, Pillay said, to ask her to give reasons why he shouldn’t suspend her. “Many, many letters” between the two followed, which meant Mkhwebane was appraised of the fact that Ramaphosa was considering her suspension.
Judge Matthew Francis, who is hearing the matter along with Judges Lister Nuku and Judge James Lekhuleni, said the Acting Public Protector’s continuation of the investigation didn’t mitigate the risk.
But Pillay responded there was no risk because the president had no say in who the Acting Public Protector was.