Court appeal could stall impeachment proceedings against Mkhwebane

Public protector Busisiwe Mkhwebane has applied to appeal against the court decision that cleared the way for an impeachment process against her.

She said on Friday the Western Cape High Court judgment that refused to give her an interim interdict against parliament’s impeachment process was flawed.

The full bench judgment of Vincent Saldanha last week rejected her urgent bid to suspend the process under way in parliament — still in its early phases — that could see her face impeachment proceedings. If leave to appeal is granted, this would again put the process on hold.  

In the application for leave to appeal, Mkhwebane said the three judges had used the wrong law to assess the public protector’s case by applying the Constitutional Court’s decision in an Outa case on e-tolls when that decision was not applicable to this case.

In court, Mkhwebane’s counsel Dali Mpofu SC had argued that Outa — which sets out when and how interim interdicts should be granted against organs of state — did not apply to this case because there was mala fides, or bad faith conduct, on the part of the DA, which had brought the impeachment motion against Mkhwebane. But this argument was rejected by the court.

In her application for leave to appeal, Mkhwebane also said that the judges “failed to understand or discern the real impact and significance of the judgment in EFF v Gordhan”. 

This recent judgment of the Constitutional Court granted an interim interdict to public enterprises minister Pravin Gordhan, interdicting the implementation of remedial action of the public protector pending his review of one of her reports. Though Mpofu presented extensive argument that this judgment was a game-changer as far as this case was concerned, Saldanha was unconvinced, saying the EFF v Gordhan decision had not broken new legal ground.

Mkhwebane’s application for leave to appeal said: “The said judgment was in actual fact ground-breaking in that it not only refined the Outa test but also provided a completely alternative pathway in reaching a decision to suspend a process, while its constitutionality was being challenged”.  

It also said the judges had not properly assessed her prospects of success in part B of her case — supposed to be heard in February — challenging the constitutionality of the impeachment rules passed by parliament. The interim interdict application, what this case was all about, was part A and was only supposed to deal with what happened in the meantime.

The court had steered clear as much as it could of part B, which Mkhwebane said was wrong.

After listing other aspects that she viewed as wrong in the judgment, Mkhwebane’s application said: “These, like many other key issues, were clearly prejudged even before any argument was listened to. This amounts to a further gross misdirection and an impermissible exercise of the relevant powers and/or discretions.”

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