/ 26 April 2022

Sinister message to counsel caused postponement in Mkhwebane’s latest court bid

Her side of the story: Public protector Busisiwe Mkhwebane has labelled Basani Baloyi’s allegations ‘mischievous’.
Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)

An anonymous message to parliament’s legal representative in public protector Busisiwe Mkhwebane’s court bid to halt her likely suspension and the legislature’s impeachment inquiry against her, prompted the Western Cape high court to  postpone the hearing on Tuesday.

Advocate Andrew Breitenbach received a text message on Sunday evening informing him that the constitutional court had reached a decision on Mkhwebane’s application for rescission of its February ruling that paved the way for the inquiry to proceed.

The message indicated that the court would communicate its decision this week, well-placed sources said. According to the sender, it would be negative.

The sender was not known to Breitenbach.

He duly informed Mkhwebane’s counsel, advocate Dali Mpofu, and counsel for all parties in the matter mulled the implications in a conference call on Monday evening and another on Tuesday.

Judge Nathan Erasmus postponed the matter to 18 and 19 May. All counsel supported the move for a postponement, save Steven Budlender, who is representing the Democratic Alliance. He did not, however, for practical reasons, formally oppose it.

Mpofu termed what had transpired as “unfortunate”, but did not divulge further information in court, or when contacted. Mkhwebane’s office said it was a matter of grave concern.

Her spokesperson confirmed immediately after the matter was adjourned that the constitutional court had not yet issued directions or made a ruling on the rescission application. Applicants or litigants are the first to be informed when a decision of the apex court is due to be handed down.

The application to the apex court sees Mkwebane asking the court to reverse or rescind the judgment in early February that put paid to the embattled public protector’s bid to have the rules adopted by the section 194 committee struck down.

She claims that the court made patent errors.

The rescission application is central to the application before the high court because Mkhwebane is asking, inter alia, that President Cyril Ramaphosa be interdicted 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.

The implications of a message to Breitenbach are considerable and sinister, because it suggests that a member of the constitutional court would leak the considerations of the court prior to ruling. A very well-placed source in the judiciary pointed out that clerks also had sight to decisions before these were delivered.

The identity of the person who sent the message to Breitenbach is, at this point, the subject of inquiry and rumour.

The message comes at a point, amid sustained litigation by the public protector to avert sanction, when attempts by political factions to portray the judiciary as beholden to opponents are multiplying. 

Mkhwebane in her court papers accused Ramaphosa of being too “tainted” by the sheer number of complaints to her office against him to exercise his constitutional power to suspend her pending the outcome of the parliamentary inquiry, initiated after a panel found prima facie evidence of incompetence and misconduct.

Among the complaints she cited, was one filed by the Economic Freedom Fighters eight days after the court application. It seeks to implicate the president in “judicial capture”, and was filed eight days after Ramaphosa wrote to Mkhwebane, asking her to field reasons why he should not suspend her.

Legal counsel representing respondents in the current application before the high court refrained from commenting on this article, constrained by the uniform rule of ethics of the bar, which precludes them from doing so in any matter in which they have been briefed.

Rescission is only indicated when the court rules against a litigant who is absent, or the court made an error which, had it been aware of such, it would not have been handed down the ruling in question.