Court dismisses Mkhwebane's bid to set aside section 194 inquiry committee proceedings

A full bench of the Western Cape High Court has dismissed with costs an application by suspended public protector Busisiwe Mkhwebane in which she sought to declare unlawful and set aside proceedings of the section 194 parliamentary inquiry committee into her fitness to hold office. 

Mkhwebane also sought to review the decisions on October 17 2022 to dismiss the recusal applications she brought against committee chairperson Qubudile Dyantyi and committee member and DA MP Kevin Mileham. 

She also sought to review the committee's decision made the same month not to summon certain witnesses to testify at the inquiry, including President Cyril Ramaphosa. 

The court said during argument the focus of counsel for Mkhwebane was on the refusal to summon Ramaphosa. 

Mkhwebane contended the decisions of Dyantyi and Mileham not to recuse themselves were in breach of the principle of legality, unconstitutional and invalid. 

The application was opposed by Dyantyi, Mileham and the DA. 

The inquiry into Mkhwebane’s fitness to hold office began its hearings on July 11 2022. This followed a motion tabled by DA chief whip Natasha Mazzone in February 2020 which sought that the section 194 inquiry be initiated to investigate the removal of Mkhwebane from office on the grounds of misconduct and incompetence. 

On July 12 2022, Mkhwebane indicated she was participating in the proceedings under protest, including that Dyantyi could not be impartial as he was a member of the ANC which had unanimously voted for the establishment of the inquiry.

However, Mkhwebane indicated she had decided not to ask for his recusal.

Three days later, a committee member informed the committee of the contents of the National Assembly's register of interests, which noted Mileham was married to Mazzone. 

On September 20, after the inquiry had sat for 30 days, Mkhwebane brought applications for the recusal of Mileham on three grounds and Dyantyi on 12 grounds. 

On October 18, Dyanti refused to recuse himself and the majority of the members of the committee supported the decisions of Dyantyi and Mileham not to recuse themselves. 

Mkhwebane lodged an application seeking that the committee's proceedings be adjourned pending her application to review the recusal decisions. On October 27, the adjournment application was refused, prompting Mkhwebane to launch the court application on November 7.

The respondents said the court was precluded from determining her application in the middle of ongoing proceedings. 

In its judgment, the court said it would not be appropriate to permit a piecemeal review of proceedings. Only in rare cases where grave injustice might otherwise result, would a court entertain a review before the conclusion of proceedings. 

“With no exceptional circumstances demonstrated, the balance of convenience favours a decision to dismiss the application brought by [Mkhwebane].” 

However, the court said the punitive costs order sought by the respondents was not warranted, as it could not find Mkhwebane deliberately embarked on vexatious litigation.  

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