Johannesburg – Suspended Public Protector Busisiwe Mkhwebane has pleaded with the Constitutional Court to allow her to complete her seven-year term in office.
Mkhwebane told the apex court that last month she entered the final year of her non-renewable seven-year term as Public Protector.
”With effect from October 16, 2022, I have entered my final year of the seven-year non-renewable employment contract envisaged in section 183 of the Constitution,” she stated in papers file at the Constitutional Court.
Mkhwebane continued: “It is my personal intention to prepare the organisation for a smooth handover to my successor so as to avoid some of the problems which partly and ironically led to the current impeachment process”.
According to Mkhwebane, it is also in the interests of the public to have certainty in the Public Protector environment so that the core work of the office is not unduly disrupted or delayed.
The Public Protector filed papers in response to the DA’s appeal of the full bench of the Western Cape High Court judgment declaring her suspension in June by President Cyril Ramaphosa invalid and setting it (the suspension) aside from September 9.
Mkhwebane is paid just over R2.3 million a year and the ongoing Section 194 committee into her removal heard in August that she will be entitled to a R10m gratuity on vacating of office.
Her predecessors Lawrence Mushwana received R6.8m when he vacated the office in 2009, while Thuli Madonsela was paid a R7.6m gratuity in 2016.
The president is allowed to remove the Public Protector but only on the grounds of misbehaviour, incapacity or incompetence, determined by a parliamentary committee.
She will lose the perks should she be unceremoniously removed after a recommendation by the National Assembly.
Mkhwebane has also filed an urgent conditional appeal of the ruling by Judges Lister Nuku, Matthew Francis and James Lekhuleni.
She wants their judgment overturning her suspension to be executed with immediate effect in terms of the Superior Courts Act and the Constitution, as well as for it to be confirmed by the apex court.
In addition, Mkhwebane wants the matter to be set down over two days later this month or it schedule a very early start of proceedings, as nine separate but consolidated matters will be argued by no less than four or five legal issues and that each involves complex albeit overlapping legal and constitutional issues.
”Evidently, it will be difficult to manage all these items in one single day even if one has to accept that there are significant overlaps among them,” she argued.
In its response, the DA told the Constitutional Court that Mkhwebane’s cross appeal should be dismissed and the Public Protector should pay the costs in her personal capacity.
The official opposition wants the court to finally dismiss Mkhwebane’s complaints about the legitimacy of the Section 194 committee inquiry into her removal in order to avoid any lingering doubt about its work.
The party described Mkhwebane as an “indefatigable litigant”.
”The DA has little doubt that she will seek leave to appeal in the High Court, and then the Supreme Court of Appeal, and then again in this court, solely so that she can question the legitimacy of the Section 194 committee,” the party explained.
Ramaphosa said none of the grounds of appeal identified by Mkhwebane has even a remote prospect of success.
The president insisted that he suspended Mkhwebane as he was entitled to do in law, to protect and enforce his rights and fulfil his constitutional obligations, and denied he acted in bad faith.
Ramaphosa has asked the Constitutional Court to set aside the ruling of the full bench of the Western Cape High Court declaring Mkhwebane’s suspension invalid and replace it with an order that her application is dismissed.
The matter is set down for November 24.