Bantu Holomisa comes out in support of embattled Busisiwe Mkhwebane

UDM leader Bantu Holomisa has come out in support of the public protector in her legal battle to halt impeachment proceedings against her in parliament.

Holomisa and ATM leader Vuyolwethu Zungula have filed an affidavit supporting Busisiwe Mkhwebane’s position that the impeachment process should not proceed while she is applying for the Constitutional Court to reverse its own judgment on the constitutionality of impeachment rules.

In a unanimous judgment in February, the ConCourt cleared the way for the impeachment process to go ahead. However, Mkhwebane then applied to the ConCourt to rescind its own judgment.

She has again approached the Western Cape high court for an interim interdict to prevent the impeachment process from going ahead in parliament while the matter ias sub judice before the ConCourt. In the same case, she has challenged the president’s power to suspend her.

Speaker Nosiviwe Mapisa-Nqakula and the chairman of parliament’s impeachment committee Qubudile Dyantyi  have opposed Mkhwebane’s bid to put the brakes on the committee’s work.

Mapisa-Nqakula said the rescission application to the ConCourt was a “desperate (and legally impermissible) attempt” to relitigate a case she had already lost.

She said Mkhwebane was precluded from seeking an interim interdict that the committee’s work be suspended because the Western Cape high court considered and decided this question in 2020.

In 2020, the Western Cape high court refused to grant an interim interdict to Mkhwebane, pending her earlier challenge to the constitutionality of the impeachment rules. This challenge then went on appeal to the ConCourt, whose judgment she wants the highest court to rescind. 

However, Mkhwebane said in her current application it was “undeniable” that the merits pertaining to the constitutional validity of the process were “pending for determination” at the ConCourt. She referred to rule 89 of the rules of the national assembly, which says no member of parliament may reflect on the merits of a matter “on which a judicial decision of a court is pending”. The committee would be acting unlawfully to proceed, she said.

Holomisa, a member of the impeachment committee, said it would be “impossible” to conduct the inquiry without breaching the sub judice rule. He said the EFF and the ATM representatives on the committee had “sharply objected in that the rescission application was still underway”.

“They were unfortunately outvoted by the majority and therefore the incorrect and unlawful decision to go ahead towards the inquiry was taken,” said Holomisa.

In his affidavit Dyantyi said: “The deliberations of the section 194 committee will be about the misconduct and incompetence of advocate Mkhwebane alleged in the charges supporting the motion of Ms Mazzone MP [DA chief whip Natasha Mazzone]. Such issues do not arise in the rescission application pending before the [constitutional court] or in part B of the present application, and therefore there is no risk that rule 89 will be breached if the committee continues with its work.”