Public Protector Busisiwe Mkhwebane fails to halt parliament impeachment process

09 October 2020 - 12:11 By Franny Rabkin
The judgment has cleared the path for an independent panel, to be appointed by Speaker Thandi Modise, to look into whether there is prima facie evidence for the complaints against Busisiwe Mkhwebane (pictured).
The judgment has cleared the path for an independent panel, to be appointed by Speaker Thandi Modise, to look into whether there is prima facie evidence for the complaints against Busisiwe Mkhwebane (pictured).
Image: MIKE HUTCHINGS

The Western Cape High Court has dismissed an application by Public Protector Busisiwe Mkhwebane to interdict parliament from taking any further steps in an impeachment process.

The judgment has cleared the path for an independent panel, to be appointed by Speaker Thandi Modise, to look into whether there is prima facie evidence for the complaints against her.

In a judgment on behalf of a full bench, Judge Vincent Saldanha said despite trenchant criticism by Mkhwebane of Modise and the DA, he was not persuaded that Modise had “in any way” acted in bad faith.

“I am equally not persuaded [that] the complaints of mala fides by the applicant against the tenth respondent (the DA) are ... sustainable.”

Mkhwebane had asked the court to interdict parliament from taking any further steps in an impeachment process against her, pending her challenge to its impeachment rules, which she says are unconstitutional.

Friday’s judgment relates only to Part A of Mkhwebane’s case - the interdict application - with Part B, on the constitutionality of the rules, planned for November.

The DA sought her impeachment on a number of grounds, including the Constitutional Court’s judgment last year which ordered that Mkhwebane pay for the costs of litigation she had been involved in as public protector from her own pocket.

In an unprecedented rebuke, the Constitutional Court - from which there is no appeal or review - said Mkhwebane “had not been candid”, had “acted in bad faith”, was “not honest”, that she put forward “a number of falsehoods”, had made “misrepresentations under oath”, and that she had failed to “provide this court with a frank and candid account”.

According to the rules for the removal of the heads of chapter nine institutions, the independent panel must consist of three fit and proper South African citizens, which may include a judge. They must collectively possess the necessary legal and other competencies and experience to conduct the preliminary assessment. If the Speaker appoints a judge to the panel, this must be done in consultation with the Chief Justice.

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