‘Mkhwebane’s intention to return to work is misconceived’: Ramaphosa

President Cyril Ramaphosa has again explained to suspended public protector Busisiwe Mkhwebane the reasons why she cannot legally return to work.  

Presidency spokesperson Vincent Magwenya said Ramaphosa has pointed out that Mkhwebane’s “intention to return to work is misconceived”.  

Mkhwebane shocked the nation on Tuesday morning when she said she would return to work but was blocked from doing so.  

She told journalists: “The leadership in the police service have told my protectors they can’t be held responsible. It’s like I am defiant and unfortunately they cannot allow them to be involved in such. Apparently I was going to be blocked or the police can’t allow me to enter the office.”  

She said her understanding of the Public Service Act was that the issue of “suspension shouldn’t be used as a punishment. You can be suspended as an employee and if the process is not complete, because sometimes it says you should finalise the process within 60 days, you can come back to work while the proceedings are ongoing” .

However, Magwenya on Tuesday said Ramaphosa has outlined to Mkhwebane the constitutional processes that pertain to her suspension or potential removal from office and which prevent her from reporting for duty. 

He said the president set out the conditions preventing the suspended public protector’s return to office in a letter to her dated September 4 2023. 

Magwenya said Ramaphosa responded to Mkhwebane’s letter on Monday in which she had expressed her intention to report for duty on Tuesday until the expiry of her term of office on October 14 or “any lawful removal in terms of section 194 of the constitution, whichever happens first.

“The president has pointed out to advocate Mkhwebane that her intention to return to work is misconceived. This is due to the fact that the proceedings initiated by a committee of the National Assembly, which has inquired into advocate Mkhwebane’s fitness to hold office, have yet to be completed. 

“Now that the committee has adopted its report, the proceedings initiated by the committee will be finalised either when the National Assembly does not adopt a resolution calling for the removal from office of advocate Mkhwebane, or if the National Assembly does adopt such a resolution.”

In his letter the president said: “It is therefore patently clear the process initiated by the committee is not completed, (as your letter suggests) when the inquiry by the committee has been finalised. 

“In the circumstances, you have no right or entitlement in law to return to office pending the decisions to which I refer above. 

“In the circumstances, while I thank you for your courtesy in informing me of your intention, your interpretation of the Presidential Minute and my letter is wrong, and your intention to return to office is misconceived. 

“Your letter states you were advised on August 24 2023 that the committee had completed its part of the process, and that its report would be tabled in the National Assembly. You waited until today to inform me of your intention to return to office tomorrow. Such precipitate action is unjustified on any basis.”

TimesLIVE reported that Mkhwebane announced on social platforms on Monday evening that she intended to head back to work after the parliament section 194 inquiry which probed her fitness to hold office finalised and submitted its report with recommendations to the National Assembly.  

Parliament is expected to make a decision on September 11 on Mkhwebane’s case.   

“The section 194 proceedings/inquiry has 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. Therefore and as a matter of courtesy and protocol advocate Mkhwebane has advised President Cyril Ramaphosa that she will be reporting back to work,” the statement read.    

According to Mkhwebane’s interpretation, her suspension was only effective during the parliament inquiry.   

The public protector's office said Mkhwebane remains suspended until Ramaphosa advises otherwise.  

“The institution acknowledges the subject of the matter and hereby advises the public protector is not an employee of the PPSA. The public protector is appointed to office by the president of the republic,” said public protector spokesperson Ndili Msoki.  

TimesLIVE