Parliament says it will mull Mkhwebane’s demand to delay impeach processes

Parliament has told public protector Busisiwe Mkhwebane that it will next week consider her latest move to place her impeachment inquiry on hold as she continues to cry foul over a text message sent to legal counsel for the legislature.

Mkhwebane is demanding that the inquiry be delayed pending an investigation she has demanded the constitutional court launch into the origin of the message, which prompted the postponement of her latest legal wrangle with parliament.

“The public protector’s request will be discussed in the committee’s meeting scheduled for 11 May,” the speaker’s office said, referring to the section 194 committee that will consider whether Mkhwebane should be removed from office for incompetence and misconduct.

Mkhwebane has applied for a high court interdict to halt the inquiry until the constitutional court has pronounced on a rescission application she filed in response to its February ruling that paved the way for it to proceed. The committee had been due to proceed with its work on 4 May.

But the matter took a further turn when parliament’s legal counsel, advocate Andrew Breitenbach, received a text message two days before the court hearing suggesting the constitutional court had resolved not to entertain the rescission application and its decision had been leaked.

There is no indication that there was any substance to the message

The constitutional court has confirmed that no decision has been reached on the rescission application and the sender, Ismail Abramjee, has denied that it was informed by anything more than his own hunch on how it would rule.

But Mkhwebane claims the message points to impropriety on the part of the court and has, in a correspondence to the registrar of the constitutional court, alleged that both he and Chief Justice Raymond Zondo inadvertently confirmed this.

After the message emerged and the Western Cape high court postponed the hearing of her application to mid-May, she wrote to the constitutional court demanding an inquiry into the alleged leak.

The registrar replied, reiterating that no decision has been taken on her rescission application, and added: “The allegations contained in the letter are currently being investigated.”

In a second letter to the court, Mkhwebane said the response “raises more questions than answers” and demanded to know who would lead the investigation, what its terms of reference are and whether oral evidence will be gathered, including from herself.

“The answers to such questions are essential as they may have far-reaching implications on the serious issues arising out of this matter,” she wrote.

She went on to say the registrar’s assurance that the outcome of her application for direct access and rescission would be communicated to the parties when the court has finalised its processes and made its decision.

It implied, Mkhwebane alleged, that the court had taken a decision, but not yet announced it, whereas parliament was still waiting for directions from the chief justice on whether it needed to file written submission in response to her application.

The same went, she said, for Zondo replying to a question about the furore in a television interview by saying it was unacceptable for someone to allege that the court has decided a matter without informing the parties.

On Thursday, she opened a criminal case against Abramjee, alleging that he and “accomplices” at the apex court were guilty of contempt of court and obstructing the course of justice. Abramjee should also face a charge of perjury for denying that his message was based on any privileged information.

In her 76-page affidavit to the police, she also asked the police to investigate members of the judiciary for corruption for having “offered or accepted gratification to/from” Abramjee to act in a manner that infringed on her constitutional rights by influencing the decision of the high court.

The high court will hear her application on 18 and 19 May. Mkwebane is not only seeking to prevent the impeachment inquiry from proceeding pending the ruling on the rescission application, but to interdict President Cyril Ramaphosa from suspending her.

Her arguments in this regard include that the president is conflicted because she is investigating a recent complaint from the Economic Freedom Fighters implicating him in “judicial capture”.
Legal observers believe the rescission application has no prospect of success.

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