By Dirk Kotzé
The Western Cape High Court’s latest judgment on the public protector is widely accepted as a victory for her over President Cyril Ramaphosa. It declared his suspension of her as unlawful, reportedly because it could be understood as a retaliation against her decision to investigate the Phala Phala incident.
The president’s right to suspend a public protector, auditor-general or a member of any of the Chapter 9 institutions is stated in the Constitution’s section 194(3)(a). “The president may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person”.
That cannot be unlawful and therefore the president does have the right to suspend the public protector. The motive of Ramaphosa’s decision and its timing appears to be the main contention in the judgment. The three Western Cape judges reached the conclusion that Ramaphosa was biased in his decision.
The public protector also accused him of being “conflicted” or that he was disqualified to suspend her by a conflict of interest between his decision of suspending her, and her decision to investigate a number of accusations against him, including Phala Phala.
The court judgment was, however, not in all instances in favour of the public protector. Her claims that he committed acts of contempt of court were rejected. She failed to prove that the timing of her suspension could frustrate the future implementation of a favourable court order.
Ramaphosa’s decision to suspend her before the court pronounced on her application for an interdict against it, was also not contempt of court. All that was left, therefore, was his alleged conflict of interest or a biased intention. The Western Cape judgment has no final word on this matter.
The Constitution determines in section 172(2)(a) that “an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court”. The judgment can therefore not yet be implemented.
More so, one of the options is that the Constitutional Court does not agree with the judgment and sets it aside. Irrespective of what the outcome is, it will set an important constitutional precedent about presidential powers and specifically decision-making. One of the relevant constitutional human rights in this instance is just administrative action (section 33).
Moreover, the principles of natural justice are closely aligned with it and are always applicable to presidential decisions. The fact that Ramaphosa wrote to the public protector in mid-March (before the Phala Phala furore) to request reasons why he should not suspend her, was an application of these principles. It apparently did not persuade the judges in any way.
The public impact of this judgment is certainly negative for Ramaphosa. It questions his sense of judgment in situations like this one, it can suggest that his personal interests are more important than his presidential interests, and therefore his credibility is under pressure.
What the judgment did not do is to implicate him in criminal or other misdemeanours. The fact that the claims of contempt of court were dismissed serves as a counterconsideration in the public judgment of his motives.
The Western Cape High Court judgment does not have a direct legal impact on the public protector’s parliamentary impeachment process. The judgment could not make any pronouncement on this process, because it dealt only with the presidential role in it.
Her suspension did not affect any of her rights in the parliamentary investigation, her ability to present her case to it or her employment as the public protector. The suspension also did not limit or distort any element of the parliamentary process. In essence, the case was about a presidential decision and not a parliamentary one.
The fact that section 194 states that such a suspension can happen at “any time” after the parliamentary process has started, suggests that the process is not affected by a suspension.
A person can be suspended in the beginning or right at the end, or not at all, and it should not make any difference. This judgment coincides with the beginning of the ANC’s nomination process for the leadership candidatures at the National Conference. It coincides with Dr Nkosazana Dlamini Zuma’s announcement that she is available to be a presidential candidate as well as the latest talks with former president Jacob Zuma, the ANC’s KZN provincial leaders and also other NEC members.
The political stakes are therefore increasing all the time, because now until mid-October is the time for the ANC’s branches and provinces to take their decisions about nominations.
The latest political dynamics can determine whether Ramaphosa is in a weaker position whether it will encourage his opponents and mobilise new support for them. Dlamini Zuma’s move is most probably a product of this. What it did not do, is to disqualify Ramaphosa as a candidate, both in the public eye as well as by the ANC’s procedures.
His most dangerous risk remains the Phala Phala situation. For him, it is in the first instance about his public credibility, his authority as a president and whether he acts in the public interest or in his own interest.
His best hope is that the Constitutional Court disagrees with the Western Cape High Court judgment and sets it aside or changes it to a more favourable one. The Constitutional Court will also be aware of the criticisms from the Zuma supporters that the court is partisan towards Ramaphosa or in general, politically biased against them.
Their timing of when to announce their own confirmation judgment is therefore also complicated. For the moment, an unforeseen possibility is that the parliamentary impeachment process is concluded before the court’s confirmation judgment.
The parliamentary deadline was set for the end of this month, but that will most probably be extended. Irrespective of what the final parliamentary decision is, it will overtake the impact of this court judgment and provide a final conclusion for the relationship between the public protector and the president.
Kotzé is a professor at the Department of Political Sciences at the University of South Africa.