EDITORIAL | Mkhwebane’s frivolous appeals make a mockery of judicial system

The latest chapter in the Busisiwe Mkhwebane spectacle is a frustrating example of how SA’s court processes can at times be used to stall and stifle constitutional accountability.

The public protector this week achieved the dubious honour of becoming the first person to apply to the Constitutional Court to rescind its decision to reject her earlier rescission application.

You may have to read that line again. It’s brain freeze fodder designed to exhaust and frustrate legal processes — most likely in an attempt to delay any possible impeachment hearing until her term expires in October next year.

The sordid tale started back in November 2020, after a string of damning criticisms of her by various courts.

A panel appointed in terms of parliament’s impeachment rules found there was “prima facie evidence demonstrating the public protector’s overreach and the exceeding of the bounds of her powers in terms of the constitution and the Public Protector Act, as well as repeated errors of the same kind, such as incorrect interpretation of the law”.

In March last year the national assembly voted to set up a committee to query her fitness to hold office — a preliminary step in a possible impeachment. She is the first head of a Chapter 9 institution to face such a process.​

Mkhwebane approached the high court to challenge the constitutionality of the rules. She was successful on two of her 22 grounds: the desirability of Modise appointing a judge to the independent panel and her right to legal representation during the formal inquiry.

Undeterred, Mkhwebane is now asking the court to reconsider, spurred on by a nugget of ammunition that fortuitously fell into her lap during a separate but related case in the Western Cape high court last week.

The matter went all the way to the ConCourt, which in February found that having a judge on the panel was acceptable, but that not being able to have legal representation during the formal inquiry was unconstitutional. The ruling paved the way for the impeachment process to resume.

Mkhwebane then applied to the ConCourt asking it to rescind its decision. Last Friday, it dismissed her request.

Undeterred, Mkhwebane is now asking the court to reconsider, spurred on by a nugget of ammunition that fortuitously fell into her lap during a separate but related case in the Western Cape high court last week.

In this case, Mkhwebane was seeking an interim interdict to prevent parliament from proceeding before the ConCourt decision. She also wants the high court to order that President Cyril Ramaphosa may not suspend her.

Proceedings were set down for Tuesday and Wednesday, but the parties agreed to postpone after an anonymous text message was sent to Mkhwebane’s counsel, Andrew Breitenbach.

The sender had it on “good authority” that the ConCourt would, within the week, dismiss Mkhwebane’s application to rescind its impeachment judgment.

Courts’ intended orders are normally confidential and the text message sparked questions about a possible leak in the ConCourt, prompting chief justice Raymond Zondo to announce an investigation into the “concerning” text.

The sender, identified as Ismail Abramjee, later said he had no inside knowledge of what the judgment would be.

In her latest court application, Mkhwebane says she was “shocked” when her attorneys received the rescission order and a letter with just a single line, refusing to engage “in further correspondence of  this nature”.

She argues the ConCourt’s decision was inconsistent, initially thanking her for bringing the text to their attention, but then refusing to engage further.

This conduct was “reminiscent of irrational and/or unreasonable conduct, which leaves me legally stranded, helpless and unable to address the prejudicial condition in which I find myself due to the criminal conduct referred to above, which I certainly did not invite upon myself”.

And so here we are.

Thankfully, a draft programme adopted by parliament’s special Section 194 committee yesterday listed Mkhwebane as scheduled to appear before the inquiry investigating her fitness to hold office in July. The provisional dates are July 26-29.

​While everyone is entitled to the full gamut of legal recourse, our courts should not entertain frivolous attempts to circumvent justice. Mkhwebane’s past actions in her role as public protector have been at best incompetent, possibly leaning towards misconduct.

The apex court is meant to be the final arbitrator of legal challenges. Its rulings are final, with no further recourse available, and Mkhwebane’s latest action should be dismissed with the contempt it deserves.

However the apex court should also make public its investigation into how Abramjee came to have it “on good authority” that the court would rule against Mkhwebane.

Only full transparency will put the matter to rest.