Public Protector’s office clarifies it will help Mkhwebane challenge her suspension

The office of the Public Protector has confirmed it has withdrawn its participation in all pending litigation instituted by suspended Busisiwe Mkhwebane in the name of the institution.

While it was initially thought the Public Protector’s office had left Mkhwebane out in the cold following her suspension by President Cyril Ramaphosa earlier last month, the institution has clarified its decisions.

Although the Public Protector’s office will not fund Mkhwebane’s urgent interdict to prevent her suspension, it said it will support her challenge of her suspension, as well as her defence during the upcoming impeachment proceedings.

In a statement on Thursday, the institution explained it will not fund Mkhwebane’s appeal against:

• the recent decision of the Western Cape High Court, where she sought to obtain an urgent interdict to prevent her suspension;
• the rescission application pending before the Constitutional Court;
• part B of the application in the high court;
• and the defamation of character lawsuit, which is a private matter against the Democratic Alliance.

The institution, however, said it will fund Mkhwebane’s challenge of her suspension, her defence during the impeachment proceedings and the perjury criminal case, which are within the PPSA’s fiscal governance framework.

It said it made this decision “considering that the Public Finance Management Act (PFMA) and Treasury regulations require the PPSA accounting officer to ensure sufficient funding for any expenditure that the institution is required to cover and that any estimated legal costs are reasonable and budgeted for”.

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In Mkhwebane’s absence, acting Public Protector Kholeka Gcaleka will perform all her functions, including the responsibility to direct litigation in the name of the PPSA, the institution explained.

This means Mkhwebane’s legal representatives should have obtained a power of attorney from the acting public protector prior to filing applications before the high court on 17 June and 4 July – after Mkhwebane’s suspension.

“The legal representatives’ last authority to act on behalf of the PPSA was signed as far back as 2019 by the then CEO to challenge the Parliamentary rules for the removal of office bearers of institutions supporting constitutional democracy,” explained the institution.

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“The escalation of the matters beyond the scope of the instructions that they were originally appointed for, fiscal responsibilities in ensuing financial years as well as the litigation strategy in the name of the PPSA to pursue and enforce the rights and interests of Adv. Mkhwebane, affected both the liability and legal standing of the acting public protector and the PPSA in these matters.”

These decisions were communicated to Mkhwebane and her legal representatives this week.

Compiled by Vhahangwele Nemakonde