Mkhwebane set to challenge ConCourt’s rescission order

Public protector Busisiwe Mkhwebane has instructed her lawyers to “challenge and set aside” the Constitutional Court’s order last week that rejected her application to rescind or reverse its earlier judgment against her. 

This would be the second time Mkhwebane is approaching the apex court, which is the final court of appeal, over the same judgment which cleared the way for an impeachment process against her in parliament.

Her attorneys, Seanago Inc, also said in a letter to the state attorney on Monday that if Parliament insisted on pressing ahead with an impeachment process, Mkhwebane would go back to court to suspend the process until the Constitutional Court had announced the outcome of an investigation into a possible leak.

The letter referred to the infamous SMS from Ismail Abramjee on April 24 to counsel for the speaker, Andrew Breitenbach SC, in the separate but related litigation in the Western Cape high court.

In the SMS, Abramjee said he had it on “very good authority” the ConCourt had declined to hear Mkhwebane’s rescission application and would announce this by the following Friday, which would have been April 29. 

“If anything, all these latest developments ought properly to convince any neutral and objective committee of the legislature that it would not be feasible to insist on the continuation with the [impeachment] inquiry in the middle of this multifaceted storm and as if nothing has happened,” said the letter.

The judgment Mkhwebane wanted rescinded concerned the constitutionality of parliament’s impeachment rules. The highest court in February unanimously found the rules unconstitutional in one respect, but this did not stand in the way of parliament proceeding with an impeachment process against her. 

The public protector then approached the ConCourt asking it to rescind that judgment. The application was rejected by the court on May 6, saying she had not made out a case for rescission.

She has instructed her attorneys to challenge that order, saying it was “unlawfully and irregularly granted”, according to the letter.

The letter said the rescission order was given without the highest court issuing any directions in terms of the Constitutional Court’s rules, without requiring any answering affidavits and “without affording the public protector the right to a fair and public hearing before an impartial court, as guaranteed in section 34 of the Constitution”.

The rescission application was also dismissed without awaiting the outcome of the investigation into the “leaking of information by Mr Abramjee”, said the letter. 

“The above is clearly an unsatisfactory state of affairs which grossly violates the rights of the public protector as a litigant and as a person who is the victim of the criminal conduct of Mr Abramjee and his accomplice(s) in the Constitutional Court.”

After the SMS was disclosed in court by Breitenbach, Seanago Inc wrote to the ConCourt asking if its contents were correct. The court responded that it was investigating the allegation and “the outcome of the application for direct access and rescission will be communicated to the parties when the court has finalised its processes and made its decision”.

According to an earlier letter from the state attorney, on behalf of the speaker, the speaker’s interpretation of this response was that “the statement in the unsolicited SMS is false”.

Seanago Inc did not agree, saying while it was true the decision was not announced before April 29, this did not mean a decision had not been taken. 

“The May 6 2022 order, which conforms exactly with Mr Abramjee’s illegal message, provides the strongest evidence the decision had indeed been made, presumably without the knowledge of the chief justice, at the time the SMS was sent.

“To pretend that the issuance of exactly the same order was a coincidence would be the biggest insult to any person’s intelligence and that of the members of the SA public.”

Mkhwebane’s attorneys referred to the litigation in the Western Cape high court over whether to put the impeachment process on ice: “In all the circumstances, it would seem quite obvious that at the barest minimum, the present litigation cannot continue under the current cloud and without obtaining the outcome of the chief justice’s investigation and the true and final status of the decision in the rescission application,” said the letter. 

If the parties did not agree to postpone, said Seanago Inc, the public protector would bring a “substantive application" for the case to be postponed”.

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