Suspended public protector Busisiwe Mkhwebane and advocate Dali Mpofu.(David Harrison/M&G)
Decorum went out the window on Tuesday at the parliamentary inquiry where suspended public protector Busisiwe Mkhwebane is fighting impeachment, when her lawyer demanded a postponement to allow him to focus on further litigation after a court ruling found her suspension invalid.
The stand-off began after advocate Dali Mpofu told the section 194 inquiry that Mkhwebane had taken ill but said the real reason for his plea for a postponement was the sheer amount of court papers he needed to prepare.
“The public protector is not here, she is not well, she has been taken to the doctor’s, but this is not why we are applying for this postponement, it is just an additional reason,” he said. “We are not in a position to proceed with this inquiry right now because it is the same public protector who is involved in this very serious matter here but also in the very serious matter in the courts.”
He added that would not be able to proceed with the cross-examination of the day’s witness, Noliswe Thejane, in part because he needed Mkhwebane to be present.
Mpofu recapped the various approaches to court by Mkhwebane, the Democratic Alliance and the presidency since Friday, when a full bench of the Western Cape high court held that her suspension by President Cyril Ramaphosa in June was vitiated by an apprehension of bias on his part.
The court described the timing of the suspension – two days after Mkhwebane sent him questions relating to the Phala Phala controversy – as “hurried”.
“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.”
He stressed that Mkhwebane was ready to return to work on Saturday morning but was stopped from doing so when the the DA the night before filed an application to the constitutional court to oppose the confirmation of the high court finding of unconstitutionality and, in the alternative, an application for direct leave to appeal the ruling.
Legal experts disagree with Mkhwebane’s view that there is no need for the apex court to confirm the high court order, but Mpofu conceded that the application for leave to appeal suspended the implementation of the high court order.
Mkhwebane responded by filing an urgent application in terms of section 18 of the Superior Courts Act, arguing that she will suffer extensive, irreparable harm if the order is not enforced. It will be heard by the court on Friday. The DA is opposing and so, Mpofu confirmed, is the president.
He said he had worked half the night to reply to Ramaphosa’s papers, along the way letting slip that those the president had filed to court “mirrored” the arguments submitted by the DA.
“I have been here since 4am this morning because I had a deadline for some of the papers, which I have just filed now… maybe we missed the deadline by five minutes.”
In the meanwhile, he said, he had learned that the United Democratic Movement, Pan Africanist Congress and African Transformation Movement also intend entering the legal fray. He mused that it was not surprising given the magnitude of the matter.
“It is probably one of the biggest things to happen in the legal sphere so it is quite an understandable development that so many parties are joining in.
“This is a case that will make the Nkandla case look like a Sunday picnic,” he said, referring to the 2016 constitutional court judgment that clarified that the public protector’s remedial action is binding unless it is set aside by the courts.
Mkhwebane’s application was initially due to be heard in high court on Tuesday but not all counsel involved were available. In the interim, Mpofu’s approach is that the inquiry should be paused until the courts have pronounced on whether she can return to work.
On Monday, he cautioned the committee that there was a real risk, as far as its work was concerned, of “not being able to do anything this week”.
Committee chairman Richard Dyantyi responded to his further explanation on Tuesday by asking what further papers Mpofu needed to prepare, given that he had met his deadline earlier that morning. Mpofu said he was shocked by the question and Dyantyi’s lack of understanding, stressing again that he and the rest of Mkhwebane’s legal team have had sleepless nights.
They also sparred over Mkhwebane’s absence, with Dyantyi noting that she had not informed the committee directly.
The request for a postponement was opposed by evidence leader Nazreen Bawa, who said the committee’s schedule would be disrupted if it were not able to continue with its work on Tuesday. She sought clarity as to whether Mpofu wanted the inquiry to be postponed indefinitely or for a few days.
Another exchange between Mpofu and the chairman ensued, prompting Dyantyi to order that Mpofu be muted on the legal platform.
Mpofu complained that he was being abused, and soon after added: “Your day will come.”
The chairman asked if it was a threat, and the advocate replied that it was a promise. Eventually, Dyantyi decided that Thejane’s cross-examination would be postponed till 21 September, but that of another witness, Neels van der Merwe, would proceed on Wednesday.
In the meantime, MPs could continue asking questions to Thejane. Mpofu responded that he had asked for the inquiry to be postponed, not merely the cross-examination. When the chairman asked him to stop interjecting, Mpofu accused him of bias.
Before leaving the committee, he insisted that he wanted to submit Mkhwebane’s sick note. Dyantyi told him it could be submitted to the secretary of the inquiry and Mpofu told him to calm down.
“Take a chill pill,” he said.
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