/ 10 June 2022

Mkhwebane loses high court bid to halt impeachment inquiry

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Suspended Public Protector Busisiswe Mkhwebane. (Oupa Nkosi)

The Western Cape high court has dismissed Busisiwe Mkhwebane’s bid to stall a parliamentary impeachment inquiry and prevent President Cyril Ramaphosa from suspending her — a day after he did so.

Ramaphosa announced Mkhwebane’s immediate suspension pending the outcome of the inquiry on Thursday, a day after she confirmed that her office would be investigating the theft of an undisclosed amount of foreign currency from his Limpopo game farm.

In a statement Ramaphosa, who is weathering the worst political storm of his presidency, said that in Mkhwebane’s absence her duties will be carried out by her deputy and therefore it will “not impede the progress of any investigations that are pending or underway”.

He reiterated this point at a media briefing on Friday.

Mkhwebane had asked the high court to interdict parliament from proceeding with the inquiry pending a decision from the constitutional court on her application for rescission of its February ruling that paved the way for it to proceed.

She also argued that Ramaphosa acted outside his powers when he wrote to her in mid-March asking for reasons why he should not suspend her, because the Constitution only allows him to do once the inquiry had commenced, which on her argument, it could not have. Further, she contended that the president was conflicted because he was the subject of a number of investigations conducted by her office.

When the constitutional court dismissed her rescission application in early May, Mkhwebane responded by filing another, asking it to rescind this decision — something unheard of in litigation history — and argued that the second application likewise put all processes against her on hold

Her counsel went as far to argue that the common law should be developed to allow the suspension of court orders when an applicant files for rescission.

The unanimous high court ruling by a full bench dismissed this argument and found that Mkhwebane had no right to an interim interdict stalling the process, because the application did not have the effect of suspending the decision of the court.

“The inherent problem with this argument is that any application for rescission does not automatically suspend the operation of a court order. If this was not the case, as a matter of logic, it would have as a result that the mere filing of an application for rescission (even a groundless one) would impede the operation and execution of court orders,” the judgment read.

“The rule of law stands to be completely eroded and undermined if this position was to be accepted.”

The court said the application before it sought to resuscitate a failed earlier high court bid to prevent parliament from proceeding with the inquiry until all her legal had been exhausted by way of her second rescission application but this was legally untenable.

Her second application leans strongly on her suggestion that a text message sent to legal counsel for parliament in April, suggesting the first would be dismissed, indicated that there was a leak from the apex court. 

The high court said, in something of a legal aside, that it had to agree with the respondents that there was “very little prospect of any investigation revealing that one or more of the members of the apex court … were in any way responsible for any ‘leak’” in relation to the message.

And it held that the public interest will not be served by granting an interdict in her favour, given the importance of accountability.

The ruling was written before Ramaphosa announced Mkhwebane’s suspension because it notes that should the president proceed to do so, she will be entitled to seek judicial review of the decision.

Mkhwebane has as yet not announced any decision to do so.

The court said there was nothing wrong with according a member of the executive the power to suspend someone who might investigate them, as long as the suspension had adequate safeguards. 

The president cannot exercise that power at a whim. But this was not the case here, becasue he could only do so once a parliament commenced proceedings to remove the public protector and by then credible allegations of misconduct or incompetence would already have been levied against Mkhwebane.

“Regrettably this is precisely what we are dealing with in this matter.”