President Cyril Ramaphosa's attorney says he has "no objection" to providing his answers on the Phala Phala matter to the court deciding on advocate Busisiwe Mkhwebane's latest challenge to her suspension - but was instructed not to do so by the Public Protector's office.

Mkhwebane is seeking to urgently challenge Ramaphosa's decision to suspend her, pending a parliamentary inquiry into her fitness to hold office in the Western Cape High Court on Monday morning.

She contends that Ramaphosa is conflicted and may have suspended her in retaliation for, among other things, her investigating him over the 2020 break-in at his Phala Phala farm in Limpopo.

Former spy boss Arthur Fraser laid criminal charges against Ramaphosa over the break-in, which was alleged to have involved significant amounts of foreign currency.

Fraser also contended that the president had used state resources to cover up the theft.

Ramaphosa denied any wrongdoing and had agreed to provide the High Court with a copy of his response to the 31 questions put to him over the break-in (and its alleged cover-up) by the Public Protector's Office as soon as he had filed them.

Answers

According to Assistant State Attorney Mark Owen, Ramaphosa was "unable to meet his intended deadline of 18 July 2022 for his response to the office of the Public Protector on the Phala Phala investigation, and his request for a further extension was refused by the Acting Public Protector".

He then submitted those answers on 22 July. 

It then emerged that, in an email sent to Ramaphosa's private attorneys on 4 July, the Public Protector's Office had asked the president's lawyers to "[p]lease ensure that when the response from the Presidency is ready, [it's] emailed only to us and copied here and nobody else".

"We want to take precautions to avoid any leakage of such documents to the media, thereby compromising and jeopardising the investigation."

In response to questions from News24, the Public Protector's Office confirmed that it opposed Ramaphosa's responses being made public now.

Public Protector spokesperson Oupa Segalwe said, "We reiterate that, to protect its integrity, the investigation will not be conducted out in the open."

"Section 7(2) is of the Public Protector Act 23 of 1994 provides that, 'Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, a Deputy Public Protector or a person contemplated in subsection (3)(b) during an investigation, unless the Public Protector determines otherwise'," he added.

"The courts, particularly in Gamede v Public Protector, have also emphasised the importance of protecting the integrity of investigations."

Segalwe stressed that Section 6(6) of the Public Protector Act, read with Section 182(3) of Constitution, stated that the "PPSA (Public Protector South Africa) may not investigate the performance of judicial functions and/or court decisions".

"In this regard, having information that is before the PPSA for the purpose of an investigation forming part of or being the subject of a court decision might have unintended implications for the investigation," he said.

Owen has now told the Western Cape High Court that "in light of this request from the Office of the Public Protector, the President has not made his response to the investigation available to Court. While the President has no objection to doing so (particularly in view of what was stated in his supplementary answering affidavit), he has no intention of 'compromising and jeopardising the investigation', which, according to the Office of the Public Protector, will occur if the response is made public."

He added that the president would "abide the decision of this Court as to whether his response to the Phala Phala investigation must be filed before Court".

In response, Mkhwebane has accused Ramaphosa of "refusing" to provide his Phala Phala answers to the court and has demanded that he be ordered to hand them over.

She has also accused him of failing to make "full disclosure" about "whether or not the [Phala Phala] answers confirm my suspicions as to the retaliatory nature which informed my suspension and/or the alleged apparent attempt at forum shopping by the President" - an apparent jibe at the acting Public Protector. 

It remains unclear whether the Western Cape High Court will make a decision on the potential disclosure of Ramaphosa's Phala Phala response on Monday morning.