Mkhwebane’s bid to avert suspension put on ice

The hearing of public protector Busisiwe Mkhwebane’s high court application to halt her likely suspension and the impeachment inquiry she faces, was postponed till mid-May on Tuesday, after her counsel informed the court of “an unfortunate development” relating to her rescission application pending before the constitutional court.

Advocate Dali Mpofu said the development involved Mkhwebane’s application to the apex court to reverse or rescind its February ruling that paved the way for parliament to proceed with the section 194 process for her removal.

Mpofu did not give further details. 

Mkhwebane’s office said it could not do so either, but what had happened was cause for serious concern.

“At this stage we are not at liberty to be detailed with regard to the unfortunate developments in question, other than to say it is a matter of grave concern,” her spokesman, Oupa Segalwe, said.

He said the parties agreed to the postponement to, among other reasons, “seek clarity about the developments concerned and to preserve the integrity of the judicial process going forward”.

The constitutional court has yet to rule or issue instructions on the rescission application, in which the embattled public protector has claimed that the court made errors when it allowed all but one of the rules adopted for the section 194 impeachment inquiry to stand.

It was understood that her counsel was drafting further correspondence to the apex court on Tuesday after Judge Nathan Erasmus postponed the high court hearing till 18 and 19 May.

Erasmus noted that the “better part of the high court application itself is influenced by the application pending before the constitutional court”.

This is because Mkhwebane is, inter alia, asking the court to interdict the president from suspending her pending the adjudication of the rescission application and to declare unlawful the decision of the committee to proceed with the inquiry while the matter was sub judice.

All counsel supported the postponement, except Advocate Steven Budlender, who is representing the Democratic Alliance. He did not oppose the decision.

The apex court dismissed an earlier rescission application by Mkhwebane, relating to her failed appeal against the review of her findings against President Cyril Ramaphosa on donations to his ANC leadership campaign, without a hearing.

She has since filed an extraordinary complaint against retired justice Chris Jafta, who penned the majority judgment in the matter, asking that he be ordered to revoke it and apologise to her.

The legislature initiated the impeachment inquiry after a panel found prima facie evidence of misconduct and incompetence on Mkhwebane’s part. 

The process has repeatedly been delayed by litigation launched by Mkhwebane. This high court application was filed after Ramaphosa wrote to her in March, asking her to give reasons why he should not suspend her pending the outcome of the inquiry.
She has argued in her court papers that the president is conflicted because of the raft of complaints to her office against him, and that his “enthusiasm” to act against her heightened this apprehension of bias.

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