Suspended Public Protector Busisiswe Mkhwebane. (Oupa Nkosi)
A text message public protector Busisiwe Mkhwebane insists points to serious impropriety at the constitutional court was no cause to suspend the parliamentary section 194 impeachment inquiry she faces, counsel for the legislature argued Thursday.
Advocate Andrew Breitenbach, the recipient of the message, told the high court that parliament did not gain any advantage from the text, whatever the sources or the motive of the sender were, because he immediately disclosed it to her counsel and to the high court hearing her latest application to interdict the inquiry.
“The issues that were raised have no bearing on the issues for the decision by the [section] 194 committee,” he told the Western Cape high court. “That aspect of the case is based on speculation and conjecture.”
The message sent to him on 24 April suggested that the apex court was about to reject a rescission application by Mkhwebane with which she sought to overturn a ruling in February on the rules for the inquiry that paved the way for it to proceed.
She argued that her application rendered the matter sub judice and hence parliament could not proceed, but further still that President Cyril Ramaphosa could not move to suspend her because the committee could not rightfully have commenced its work.
The constitutional court denied that it had taken a decision on the rescission application at the time Ismail Abramjee sent the message, and he said he was not acting on inside information, but rather his own analysis of the matter.
A decision eventually followed on 6 May, with the court informing Mkhwebane that it was dismissing her rescission application without hearing.
She responded with the extraordinary step of filing a second rescission application, asking the court to rescind its dismissal of the first because, she argued, it was unconstitutional and deeply damaging for it to come to a decision 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,” the public protector said.
Her counsel is asking the high court to consider all facts in the case to be as they were before 6 May.
Advocate Dali Mpofu for Mkhwebane, conceded that rescission applications did not have the same effect of automatically suspending rulings as applications for leave to appeal did under section 18 of the Superior Courts Act.
But he nonetheless argued that the law should evolve in that direction and that the high court should accept that the second rescission has suspended the constitutional court’s February ruling.
Breitenbach countered that the apex court’s decision to dismiss the original rescission application was final and had left Mkhwebane with no legal argument for an interdict.
“The matter is no longer sub judice because the rescission app has been disposed of. Where does that leave them … up a creek without a paddle,” he said.
“The implication of the dismissal of the rescission application is profound. It is devastating for this application before you get to its merits. It destroys the relief sought.”
But, he added, Mkwebane faced another obstacle in that her legal team had not filed notice to amend the relief sought, which relied on that application, not her second, as grounds for an interdict.
“They could have done that, they have not. If they try and do that in reply we will strenuously oppose it because they have known about that judgement since the sixth of May, they have filed further affidavits, they have made their bed, they must sleep in it.”
Mpofu has termed the text message a judicial scandal. Mkhwebane has claimed that powerful forces were conspiring against her and laid criminal charges against Abramjee and unnamed justices of the constitutional court.
Advocate Steven Budlender, appearing for the Democratic Alliance, submitted, as Breitenbach had, that Mkhwebane was ceaselessly trying to relitigate the dispute around the rules of the inquiry when this had been settled by the highest court.
Budlender said her first rescission application was hopeless and the second more hopeless still, but had been filed because she was determined to delay the inquiry, “no matter how esoteric the legal strategy, no matter how contrived, no matter how hopeless”.
“We are in the midst of quintessential Stalingrad litigation,” he said.
The section 194 committee has resolved to continue with the inquiry and adopted a timetable which envisions that it will in October make a recommendation to the national assembly on her fitness to hold office.
It has given Mkhwebane until Friday to respond in writing to the report of a panel that advised parliament last year that there was prima facie evidence suggesting serial misconduct on her part.