/ 11 May 2022

Mkhwebane takes on Zondo in unprecedented application

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The public protector had filed for rescission of an adverse ruling on a earlier rescission application as she accuses the constitutional court of ignoring alleged wrongdoing by its members. (Photo by Deaan Vivier/Foto24/Gallo Images/Getty Images)

Members of parliament have decided to proceed with the impeachment inquiry against public protector Busisiwe Mkhwebane after she took the unheard of step of filing an application to rescind the dismissal of an earlier rescission application in a bid to halt the process that may see her removed from office.

The section 194 committee handling the inquiry on Wednesday adopted a draft programme that provides for hearings to be held in June and July, and envisions sending its recommendations to the national assembly in October.

The decision was taken after a briefing to members by parliamentary legal adviser Siviwe Njikela, in which he described her latest rescission application as “a bit of a curve ball to all of us”.

Mkhwebane has asked the high court to interdict parliament from proceeding with the inquiry pending the outcome of her first application for the constitutional court to rescind a ruling that upheld the rules of the committee handling the process.

This ruling in February paved the way for the inquiry to start, just under a year after a panel appointed by the legislature found prima facie evidence of misconduct and incompetence on Mkhwebane’s part.

But in papers to the high court Mkhwebane argued that her rescission bid meant the legal wrangle over the rules was sub judice, hence parliament could not proceed.

The high court hearing was postponed from late April to next week after a text message was received by parliament’s legal counsel, advocate Andrew Breitenbach, suggesting that the constitutional court had not only reached a decision to dismiss Mkhwebane’s application but had somehow leaked this information.

The constitutional court denied that a decision had been taken at the time, and said in response to a letter of complaint by Mkhwebane that it would investigate the matter.

But Mkhwebane is sparing no effort to extract mileage from the incident in her fight to stave off the inquiry and any attempt by President Cyril Ramaphosa to suspend her while it is underway.

She has pressed criminal charges against the sender, Ismail Abramjee, and the justices of the constitutional court, and sent a scalding letter to Chief Justice Raymond Zondo demanding to know the scope and terms of the investigation into the text message. 

On Friday, 6 May, the court dismissed her rescission application, and the registrar, in reply to her letter, advised that the court would not entertain correspondence of such a nature with a litigant.

In the second rescission application, filed on Tuesday, she submits that it was unconstitutional and deeply damaging for the court to rule on the application before settling what she termed “the leakage saga”.

“In the main, the developments of 6 May 2022, if left unchallenged and uncorrected, will only lead to multiple and gross violations of my constitutional rights, as well as the permanent undermining of the independence and integrity of our judiciary and democracy.”

She said she was shocked to receive both the ruling and the letter refusing to entertain her questions, as she had reasonably expected that Zondo’s findings on the matter of the message would be announced first and that “all the other processes could then follow”.

Arguing for direct access, she added: “It is not the speaker or the president who is on trial, or are alleged to have failed to discharge their duties, but the chief justice and the judiciary itself. No other court can therefore possibly have jurisdiction over this matter,”

Her affidavit refers to a reception hosted by the Pretoria Legacy Foundation on March 4 to celebrate the appointment of Justice Jody Kollapen to the constitutional court. 

She said photographs of the event pictured Abramjee with Kollapen and Gauteng Judge President Dunstan Mlambo, who has been acting on the constitutional court. She attached copies of these to her affidavit to the police asking for a criminal investigation into charges of, inter alia, perjury and obstructing the course of justice.

Mkhwebane noted that Mlambo and Kollapen were reportedly due to be questioned in the court’s investigation into the infamous message. 

Abramjee has maintained that he sent the message to Breitenbach based on his own analysis as to how the court was likely to rule.

It was widely expected in legal circles that the application would be dismissed, but Abramjee has not explained why he stated in his message that he had it on “very good authority” that this was how the court would find.

Mkhwebane’s reference to Mlambo builds on a narrative advanced by a particular political faction that he is beholden to Ramaphosa. 

In papers filed to the high court, she has argued that the president must be barred from suspending her as he is conflicted because she is investigating a host of complaints against him, including that he imposed Mlambo as an acting justice of the apex court.

In her rescission application she also cries foul over a letter sent by the speaker of the national assembly to the constitutional court to ask that it deal with her initial rescission application expeditiously, as the impeachment inquiry was due to get underway on 4 May.

On Wednesday, the majority of the MPs on the section 194 committee said the furore over the text message should not impede its work.

“It is very unfortunate that it happened like that [but], it is not our baby,” ANC MP Doris Dlakude said.

Brett Herron from the Good Party concurred: “It seems as if there is an attempt to conflate the SMS saga with what we are dealing with, to contaminate our proceedings with this. 

“If there is any misconduct in relation to that SMS, I think it really is in my view irrelevant to our proceedings.”

Mkhwebane’s application for another postponement in the high court matter will be opposed.

The committee has given her until 22 May to file papers responding to the prima facie evidence against her.