‘The common law world today, however, casts the recusal net much wider. In one form or another it asks whether a sensible observer, knowing what the case was about, who the parties were and what connection the judge had with any of them or with the issues in the case, would think that the judge might be influenced by these things. The trouble with any such simple formula is that it immediately demands fuller detail. How cautious or suspicious [apprehensive] is a sensible person? What kind of link will she think matters? How robust will she expect the judge to be?’
— Stephen Sedley, ‘When should a judge not be a judge?’, London Review of Books, Vol. 33 No. 1, 06 January 2011.
If Lenin was correct in his observation that there were decades where nothing happens and weeks where decades happen, this past week stands as the foremost contender for the latter. From the election of a new head of government in Westminster and the subsequent (but not necessarily consequent) Demise of the Crown at Balmoral Castle, to the setting aside of the Public Protector’s suspension by the Western Cape Division of the High Court, the week ending 09 September 2022 had it all.
Like many, I expected the High Court’s judgment to dominate the news cycle over the weekend and well into the new week, at least domestically. But the events that followed quickly disabused me of my naïvete. Nothing is ever settled in South African constitutional law and shame on me for ever thinking otherwise. The judgment seems to have caused more strife than peace, wreaked more chaos than brought order, and harkened the litigants back to Cape Town than steered them further north where the greater powers that be, are.
Ms Busisiwe Mkhwebane, the suspended Public Protector, challenged her suspension by the President on a number of grounds. First, it was argued that the President had acted prematurely in suspending her. This was so because the power to suspend, to which we shall later revert, was triggered only once she became the subject of removal proceedings by a committee of the National Assembly and since, on her version, such proceedings had not yet commenced, the President could not lawfully exercise the suspension power.
Secondly, that the President’s lawyers had made an undertaking to her lawyers that he would not suspend her at the time that he did so and that, once he did suspend her, he breached that agreement. Thirdly, that the President acted in contempt of court by suspending her before the High Court ruled on her application to interdict him from exercising the suspension power.
Fourthly, that the President was in any event precluded from exercising the suspension power personally, in that he was the subject of previous or ongoing investigations by her office and that there was accordingly a reasonable apprehension of bias on his part. Finally, that the President violated section 96 of the Constitution when suspending her, in that he exposed himself to a situation involving the risk of a conflict between his official duties and his private interests.
The High Court dismissed all but two of these grounds. Its reasons for doing so are curious.
Earlier, on 10 June 2022, a differently constituted bench of the same Division in dismissed Ms Mkhwebane’s application to interdict the President from exercising the suspension power. In the meantime, though, certain events had occurred that set the Part B bench on a different path.
On 01 June, Arthur Fraser, the erstwhile spy boss, laid a criminal complaint against President Ramaphosa. In his affidavit, he revealed details about a robbery that took place at Phala Phala, a farm owned by the President. He alleged that a large sum of foreign cash — US Dollars to be specific — which was stuffed into furniture at the premises was stolen and that the President, his security detail and other high placed officials, instead of reporting it, sought to cover it up. The tale is riveting and bears the hallmarks of a good espionage drama: alleged kidnappings, torture, covert cooperation between South African and Namibian diplomats and intelligence operatives, and the bribery of suspects and witnesses in return for their silence.
Two days later, on 03 June, the African Transformation Movement (ATM), in the person of Vuyo Zungula, wrote to the Public Protector to lay a complaint against the President. The basis of the complaint was “whether the President had breached the provisions of the Executive Members Ethics Act by undertaking remunerative work in contravention of section 96(2)(a) of the Constitution”.
Four days after that, the Public Protector wrote to the President on 07 June to informing him of the complaint against him and that she would be investigating it, and providing him with a list of 31 questions which he had to answer within 14 days.
A day later, on 08 June, she made it publicly known that she was investigating the President in relation to Phala Phala. On 09 June the President served her with a letter of suspension.
Turning to the merits, the court rightly rejected the Public Protector’s absurd argument that the suspension power was not triggered and that the President could not lawfully suspend her. That argument relied on a reading of sections 194(1)(b) and 194(3)(a) that would have required two separate committees of the National Assembly to deal with her removal: one to establish the grounds for the removal and another to ostensibly recommend her removal to the National Assembly. The court’s conclusion was that on a proper construction, the sections referred to a single committee since “the only involvement of the committee of the National Assembly is to determine the existence of the grounds of removal”. The court also deftly dismissed the argument about the President’s breach of an undertaking, finding it unmeritorious.
On the third ground, being the President’s contempt of court by interfering with the administration of justice, the court held that the Public Protector had failed to satisfy the court “that the President knew that the interim interdict was certainly going to be granted and hurried the decision to suspend the applicant with the intention of frustrating the enforcement of the anticipated court order and thereby defeat[ing] the course of justice”.
The court then turned to the question of bias or reasonable apprehension of bias. In Part A the full court had concluded that the Public Protector had failed to “put up any ‘convincing’ or ‘cogent’ evidence to rebut the presumption” that the President was impartial and had thus failed to satisfy the double reasonableness test for determining bias or a reasonable apprehension of bias on the part of the President. The court said it would not interfere with those findings but would confine itself to events that transpired after the hearing of Part A.
Enter Phala Phala.
The court states that this investigation stands on a different footing to any other one that preceded it. This is because, when the President signed the letter of suspension on 09 June, he had already received the Public Protector’s notice of investigation including the 31 questions to which he had to respond two days earlier, on 07 June. The President’s response had been that the Public Protector had failed to convince the Part A court that he was in any way biased and that the court had in any event held that “there is nothing wrong with affording a member of the executive the power to suspend someone who might investigate them . . . as long as the suspension has adequate safeguards, is not without pay, and is not for an indefinite duration”. Notable, too, is that the President argued that there was no basis on which to claim that the suspension was retaliatory “as the process relating to the suspension predated the commencement of her investigation”.
The court then recounted the reasoning of the Part A court on the question whether, if there is an objectively reasonable apprehension of bias, the President could be prevented from exercising the suspension power. The Part A court had answered in the affirmative. That is, if there was a reasonable apprehension of bias, in the mind of a reasonable person in possession of all the relevant facts, that the President did not or will not bring an impartial and unprejudiced mind to bear on the Public Protector’s suspension, then the President would be precluded from exercising the suspension power on account of his bias.
I have adapted the wording of the test for present purposes. In truth, the classic formulation is in relation to the recusal of judges — the so-called “double reasonableness test” — and was stated by the Constitutional Court in SARFU II as follows:
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”
The Part B court expressed “grave doubts” about the applicability of the double reasonableness test to a member of the executive, as the Part A court had held. However, the court then states that it was prepared to accept “that the principles of recusal that apply to judges are the applicable standard”. The court then seems to distinguish the two tests, stating that “even on this standard [for the recusal of judges] . . . the President would reasonably be perceived to be unable to bring to bear an impartial mind when considering whether or not to suspend” the Public Protector.
This is confusing. The court’s preferred standard, which is the standard that applies to the recusal of judges, is the double reasonableness test. And the formulation of the standard as set out above is not whether the President would be reasonably perceived to be biased but whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias. The latter formulation is clearly a much higher bar than the one the court prefers. Alas, I digress.
The court moved on to detail its reasons for finding a reasonable apprehension of bias. First, that the Public Protector had been found to be unduly suspicious of the President in the past (the point here, presumably, is that the President had an axe to grind). Secondly, that at the time of the suspension the President had been “sitting with a letter […] with a long list of questions” that he was required to answer within 14 days. To this, the court said it would be a difficult proposition to convincingly sustain “that such a suspension would not have any effect on delaying the course of the investigation”. Thirdly, the court makes the somewhat prejudicial statement that the questions put by the Public Protector “may have well caused the President to conclude that ‘there she goes again’; in those circumstances, rather than to have to contend [with her], he was better off with any person but” the Public Protector. But most significant, according to the court, was the “sequence of events leading to the suspension”. Of this, the court says the following:
on 07 June the Public Protector informed the President of her investigation under the Executive Ethics Code and put 31 questions to him to answer within 14 days;
the following day, 08 June, a public announcement about the investigation was made;
in response, the President “decided to suspend” the Public Protector on 09 June.
From these events the court concludes that:
“On these objective facts, it is reasonable to form the perception that the suspension of the applicant was triggered by the decision of the applicant to institute an investigation against the President. There was no other plausible or logical explanation for the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.”
On this last point, the President had submitted that his suspension letter was issued before he became aware that the Part A judgment was being handed down the day after. The court paid the President’s submission short rift, concluding that—
“the hurried nature of the suspension in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter, leads this court to an ineluctable conclusion that the suspension may have been retaliatory and, hence, unlawful. It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive. In our view, the President could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant”.
The court held that the fact that the suspension process had commenced long before the investigation into Phala Phala was of no moment and that what was relevant was the decision to suspend her on 09 June. Therefore, the court says, “it is irresistible to conclude that the decision of the President was improper”. The court further held that while the President has the power to suspend the Public Protector, “he cannot exercise that power on a whim or for flimsy reasons”. It is not clear if the court here is suggesting that the President acted on a whim or that he acted for flimsy reasons.
Answering a point raised by the Democratic Alliance (DA), that it would be constitutionally untenable that the head of a Chapter 9 institution could simply institute an investigation against the President in order to shield themselves from suspension, the court said that the submission “presupposed that it is only the President who has the power to suspend”. And further that there were “adequate measures to deal with situations where the President is not able to personally perform constitutional functions” with reference to section 90(1) of the Constitution.
Finally, the court deals with the question of a conflict of interest, finding that the President’s suspension of the Public Protector gave rise to a situation involving the risk of a conflict between his official responsibilities and private interests. On the investigation itself, the court characterises it as “involving . . . monies not earned by the President in his official capacity” (I understand this to mean ‘monies earned bythe President not in his official capacity’).
Now, let’s get into the many issues with this judgment.
To begin with, it is not clear what exactly the standard applied by the court to the question of bias is. Is it the double reasonableness standard which requires that the person apprehending bias be reasonable, objective and well informed, and that the apprehension of bias itself be reasonable? Or is it something else, a lower bar, where only a “reasonable perception of bias” is required? It certainly isn’t clear from my reading of the judgment, granted that I could very well be wrong.
The court’s reasoning on the bias point hinges especially on the timeline leading up to the suspension. As noted earlier, the court restricted itself to what happened after Part A was heard on 18 and 19 May 2022. What strikes me as odd is that the court’s timeline only starts on the 07th of June and all the events that took place before that are disregarded. It is important to remember that the Public Protector submitted her written representations on why she should not be suspended on 26 May 2022. Almost a week after the Part A hearings. It is also important to note that the request for representations first came from the President on 17 March 2022, and a deadline of 10 days was imposed but was later extended because of the Public Protector’s legal challenges to the parliamentary committee proceedings.
Also important, which is conspicuously absent from the judgment, is that the complaint about Phala Phala was laid by the ATM on 03 June. The ATM was a litigant before the court in support of the Public Protector. It will be recalled that the Part A court found no conflict of interest or bias on the part of the President in part because the Public Protector relied on historical investigations conducted by her office against the President. That is, there was no investigation pending against the President at the time that Part A was decided. Yet, this change in circumstance (i.e., the new pending investigation) and how it came about (brought by a litigant acting in support of the Public Protector) receives no consideration. Let us be clear, the only difference between Part A and Part B is that the ATM instituted a complaint against the President two days after the Phala Phala allegations first came to light and that the Public Protector moved with some speed to initiate an investigation against the President four days after that.
It is also important to note that the Part A court held that a mere investigation, without more, does not meet the double reasonableness test and that “for a complaint to give rise to a conflict of interest, it must be because of the specific content or nature of the complaint”. The Part B judgment is very light on the details of the complaint or the nature of the allegations contained therein. Rightly so, because, like the rest of us, the court is in the dark. Yet, this was the very basis on which the court in Part A refused the interdict against suspension; that “the details about these alleged complaints are absent in these papers in the sense that we are left in the dark as to precisely how these complaints will give rise to a conflict of interest”. The Part B court had no such difficulty, proclaiming as it did that the complaint was about monies earned by the President not in his official capacity despite no evidence being led in that regard.
More concerning, I think, are some of the assumptions made, and inferences drawn, by the court without much, if any, substantiation. For instance, at  it states that the President “in response” to the Public Protector’s notice of 07 June “decided to suspend her”. In other words, there could be no conceivable reason for the suspension other than the 31 questions put to him by the Public Protector. The suspension was his response. That seems an uncharitable and possibly unfair interpretation of the events, which, as we know, stretch as far back as March when the President first detailed his reasons for considering the suspension. Again, at  the court concludes that the suspension “may have been retaliatory” and that it was “certainly tainted by bias of a disqualifying kind and perhaps an improper motive”. This the court says without explaining what the improper motive was or could have been.
At  the court is even more unequivocal that “the decision of the applicant . . . prompted the President not to wait a day more and to immediately suspend her” after her letter of 07 June. Of course, this conclusion can only be reached if one looks only at the events of 07 to 10 June. Which the court does. The question is whether that is what a reasonable, objective and informed observer, on the correct facts, would reasonably conclude.
I must be careful here because the lack of clarity on which test for bias was applicable complicates the analysis completely. But taking into account: how long suspension had been on the cards before anyone even knew about Phala Phala; that the Public Protector made representations on 26 May and was suspended two weeks later to the day; that the complaint against the President was laid by a party with a vested interest in the outcome; that the Public Protector moved with some haste to initiate an investigation after she had made representations; and that that was the sole basis on which bias was alleged, the others having previously failed, would it be reasonable, objectively, knowing the correct facts as we do, to conclude that the President was tainted by bias such that he was disqualified from exercising the suspension power? I am not convinced.
Putting aside the antecedent question of whether it is appropriate to subject purely executive conduct to the exacting standards of the rules of natural justice required in judicial proceedings, this finding of bias has some significant implications. For one, it seems to open the door to the spectre of investigations-as-shield as contended for by the DA. The court dismissed this issue offhandedly in my view. By stating that the President could remove himself entirely by allowing members of Cabinet to delegate another Cabinet member to exercise the suspension power, the court begs the question. It is no answer to whether or not that is constitutionally permissible or whether there are any circumstances in which the law would countenance an exception to the nemo iudex in sua causa rule – the rule that one cannot be a judge in one’s own cause.
To the first point, I have some concerns about our courts’ very nonchalant approach to invoking section 90(1) of the Constitution. It seems to me that it cannot possibly be a cure for all manner of alleged bias or partiality. Our courts seem to be content with the idea that the words “otherwise unable to fulfil the duties of President” in that provision constitute a free-for-all licence for ad hoc substitutions of the President such that the possibility of the country having two presidents arises. For me, the inability referred to in that section must be absolute and not merely relative. This is because it allows for the appointment of an Acting President only in two other instances: when the President is absent or there is a vacancy in that office. These appear to me to be absolute requirements. The President is either absent or not; or there is either a vacancy or not. The inability must surely then be just as absolute: the President must either be in a coma or otherwise be so indisposed that he cannot perform his duties. To allow anything else would be to accept that there may be two Presidents lawfully in office at some point — a possibility not countenanced by the Constitution — one to make a specific decision as Acting President, and another for all other duties. An absurdity at best.
Secondly, even if it were possible, it is not clear that it would cure the bias that the President would be tainted with. After all, the President appoints the Deputy President and all other members of Cabinet and has the power to dismiss them. Why would they not be as equally biased in his favour? The court also seems to suggest that one could simply jump to section 90(1)(c) to allow a Minister designated by Cabinet to exercise the suspension power, when the plain wording of the section provides that who should act as President is determined “in the order below”: first the Deputy President, followed by a Minister designated by the President, then a Minister designated by Cabinet and then the Speaker of the National Assembly until she is replaced by a member designated by that House. It is simply unworkable. And I suspect that’s the whole point.
The Part A court’s finding that there was nothing wrong with a member of the executive having the power to suspend someone who may investigate them provided that “the suspension has adequate safeguards, is not without pay, and is not for an indefinite duration” merits some attention. It constitutes, I think, a very clear exception to the nemo iudex in sua causa rule. If one accepts, as I do, that only the President can personally exercise the section 194(3)(a) power of suspension unless he is absolutely unable to (a lá comatose state), then he should be able to do so regardless of any bias or conflict of interest, imagined or real. This is because the power lies dormant and is only animated once a separate body — the National Assembly — has acted; the suspension is not indefinite; and he does not determine the conditions attached to the suspension. In other words, whatever irregularity would otherwise vitiate the suspension is ameliorated by the constitutional safeguards in place. This exception addresses what American constitutional lawyers call the paradox of the President’s Two Bodies: the tension between the person of the President and the institution of the presidency, and how it affects the exercise of constitutional powers.
The Part B court did not engage with the findings of the Part A court, even where those findings were clearly relevant to the issues it had to decide. It did so without ruling them out as clearly wrong as required by the doctrine of precedent. That is unfortunate.
I have detained you for too long, let me move on to some other issues that have caused some consternation in the past few days.
The court’s order is quite strange in that the suspension of the Public Protector was set aside “effectively from the date of [the] order”. On the strength of that order, the Public Protector seemingly assumed that she was back at work and requested access to the office, but was rebuffed by the Acting Public Protector. The DA’s lawyers on the one hand saw the matter differently. The next step, in their view, was for the matter to go for confirmation to the Constitutional Court in terms of section 172(2)(a) of the Constitution. The Public Protector’s lawyers on the other hand suggest that the matter need not be confirmed because only section 172(1) was applicable to the matter, arguing that the basis on which the suspension was set aside, reasonable apprehension of bias, was a common law ground and not a constitutional one. I do not think that is correct.
Starting with the Public Protector’s position, I do not understand there to be such a thing as common law judicial review. Least of all common law judicial review of constitutional powers. Chaskalson P said as much back in 2000 in the Pharmaceutical Manufacturers case:
“I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”
“that is not to say that the principles of common law have ceased to be material to the development of public law. These well-established principles will continue to inform the content of administrative law and other aspects of public law, and will contribute to their future development. But there has been a fundamental change. Courts no longer have to claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution which defines the role of the courts, their powers in relation to other arms of government, and the constraints subject to which public power has to be exercised.”
That the ground relied upon for review was previously a common law ground is immaterial. Any review of public power is done either under the principle of legality in terms of section 1(c) of the Constitution, or the Promotion of Administrative Justice Act, depending on the nature of the decision. This is doubly true of the exercise of constitutional powers. So I must admit that I am puzzled by the Public Protector’s position. This especially in light of the very first paragraph of the Part B judgment, which says that the Public Protector brought the application in terms of section 172(1) of the Constitution and sought “consequential relief of a just and equitable remedy”. Such a remedy in terms of section 172(1)(b) can only follow a section 172(1)(a) declaration of constitutional invalidity (hence it being ‘consequential’). Section 172(2)(a) provides that any order of constitutional invalidity concerning, among others, “any conduct of the President” has no effect unless it is confirmed by the Constitutional Court.
Some have suggested that the declaration of constitutional invalidity does not relate to any conduct of the President. I am almost hesitant to address this, but is it seriously intended to say that a review of the President’s exercise of a constitutional power is not a matter that concerns the conduct of the President? Surely not. In Corruption Watch NPC, the Constitutional Court was asked to confirm, among others, orders declaring as constitutionally invalid: the conclusion of a settlement agreement by a former President; the termination of the incumbency of the National Director of Public Prosecutions (NDPP) under applicable legislation; the decision to authorise the payment of a settlement fee; and the appointment of another person as NDPP under section 179 of the Constitution. All of which the court did confirm, in terms of section 172(2)(a), and all of which indubitably concerned the President’s conduct. That should put paid to any argument to the contrary.
I’m also aware of the Public Protector’s application in terms of section 18 of the Superior Courts Act, 2013 to enforce the order pending the DA’s appeal launched almost immediately on Friday, but, frankly, all of that is moot given that the order — notwithstanding the court’s misdirection — must be confirmed by the Constitutional Court.
The saga is only just unfolding and is likely to get more complex as it progresses. There are no ready answers to the questions thrown up by this saga, for sure. But that does not mean that the easy answers are the correct ones.
I hope that this brief primer has untangled some knots for you. There sure will be lots more to come.