Suspended Mkhwebane wants to return to work, but Ramaphosa says no

Suspended Public Protector Busisiwe Mkhwebane wants to return to office, believing that she is no longer suspended.

Mkhwebane announced on Monday that she intended to return to work on Tuesday based on her interpretation of President Cyril Ramaphosa’s suspension letter dated 9 June 2022.

She claimed that the president suspended her pending the finalisation of a parliamentary enquiry into her fitness to hold office.

“[The] section 194 proceedings/inquiry has now been finalised. The period of suspension defined in the Presidential Minute issued in terms of section 194(3)(a), read with section 101(1)of the Constitution, has expired,” Mkhwebane said.

“Therefore, and as a matter of courtesy and protocol, advocate Mkhwebane has advised president Ramaphosa that she will be reporting back to work tomorrow morning, on Tuesday 5 September 2023.”

In a letter to Mkhwebane, dated 4 September, Ramaphosa said she had no right or entitlement in law to return to office.

Ramaphosa said:

He pointed out that while the Section 194 Committee, which held the enquiry into Mkhwebane’s fitness to hold office, had adopted its report, the proceedings that were initiated by the committee would be finalised either when the National Assembly does not adopt a resolution calling for her removal from office, or if the National Assembly does adopt such a resolution and the president acts in terms of Section 194(3)(b) of the Constitution.

“Fourth, it is therefore patently clear that the process initiated by the committee is not completed (as your letter suggests) when the enquiry by the committee has been finalised.”

The president added that he had not been informed of any resolution having been taken by the National Assembly as contemplated by Section 194(2) of the Constitution.

“The National Assembly has therefore not yet completed its part of the process.”

The National Assembly will consider the motion for Mkhwebane’s removal on 11 September.

A two-thirds majority is required for her removal, which will likely be achieved as the ANC, DA, IFP, FF Plus and the African Christian Democratic Party are in support.

If a motion for her removal is passed, Ramaphosa must remove her from office.

News24 previously reported that the Section 194 Committee adopted a final report recommending to the National Assembly that Mkhwebane be removed from office.

The charges draw on Mkhwebane’s conduct during the investigations and the subsequent litigation, which invariably ended badly for Mkhwebane.

Having made a litany of findings against Mkhwebane, the committee found that the charges against her had been sustained and subsequently agreed to recommend her removal.

The litigious Mkhwebane, who also unsuccessfully challenged her suspension in court, has indicated that she intends to take the committee’s report on review.

Mkhwebane intended to use funding from the Office of the Public Protector provided for her defence against the impeachment proceedings for this, but the office withdrew this funding.

The Office of the Public Protector has paid around R30 million for Mkhwebane’s legal representation during the proceedings, which saw her employing a range of stalling tactics.

Mkhwebane’s term of office ends on 14 October.

The Office of the Public Protector noted Mkhwebane’s intention to return to office but said, in the absence communication from Ramaphosa, her suspension remains effective.