Mkhwebane believes she is being ‘victimised by powerful forces’

Public protector Busisiwe Mkhwebane feels she is “being victimised by the most powerful forces in this country ever to be imagined”, her counsel told the Western Cape high court on Wednesday.

Mkhwebane was in court urgently seeking orders to halt an impeachment process against her in parliament and to prevent her possible suspension by President Cyril Ramaphosa.

Last week parliament said it would press ahead with the impeachment process, despite her litigation. The president has given her until May 26 to tell him why she should not be suspended.

Mkhwebane’s counsel, Dali Mpofu SC, said the public protector felt there was a “network loaded against her” — including the president, the speaker and the chief justice, as head of the judiciary.

He referred to events since the emergence of the text message by Ismail Abramjee last month to counsel for the speaker Andrew Breitenbach SC.

In the text message, Abramjee said he had it “on very good authority” that the Constitutional Court would, within the week, decline to hear the public protector’s application to rescind its earlier judgment that cleared the way for the impeachment process to go ahead in parliament. 

Court decisions are normally confidential until the moment they are publicly announced and, at the time, Mkhwebane’s rescission application was still pending before the apex court.

She had also separately applied to the high court for the interim orders, which were to a large extent dependent on the outcome of the rescission application at the ConCourt. The high court case was originally set down for last month, but the hearing was postponed after Breitenbach disclosed the text message to the court.

Wednesday was the return day for the high court application. In the meantime, the ConCourt said it would investigate the text message. When Mkhwebane wrote back seeking further clarity on its investigation and the status of the rescission decision, the court would not answer her further questions and, on the same day, dismissed her rescission application.

Mkhwebane then went back to the highest court asking it to rescind its dismissal of her rescission application, saying the rescission order, coupled with the letter rejecting her request for more information, necessitated her coming back. 

“If left unchallenged and uncorrected, [these developments] will only lead to multiple and gross violations of my constitutional rights, as well as the permanent undermining of the independence and integrity of our judiciary and democracy,” said Mkhwebane in her application to the ConCourt.

In the high court on Wednesday, Mpofu said Abramjee’s text message was an act of criminality and was sent with the intention of influencing the “three justices sitting here” in the high court.

If left unchallenged and uncorrected, [these developments] will only lead to multiple and gross violations of my constitutional rights.

—  Public protector Busisiwe Mkhwebane

Mkhwebane was “just trying to do her job. So her perception is that the entire network is loaded against her. How can a court of justice, not a court of law, a court of justice, not take that into account? To say: wait a minute, what is actually happening here?”

Mpofu said that the fact that the apex court had dismissed her rescission application should not detract from her chances of getting an interim interdict from the high court. Her application to rescind the apex court’s refusal to rescind its order restored the “status quo ante”, he said.

In law, when leave to appeal is granted to a litigant, the order being appealed is normally suspended, pending the outcome of the appeal. This is not the case when it comes to rescission applications. But, argued Mpofu, it should be. He said the rationale for suspending court orders on appeal applied equally in the case of rescission.  

But, suggested judge Derek Wille, then every time the apex court rejected a rescission application, a party could apply again. And it could go on “ad infinitum”, he said.

Mpofu said that scenario was speculative and the court should look at the concrete situation before it now. If there was a legal possibility that the position might be reversed by the ConCourt, “this court must respect it”, he said.  

Mpofu also argued that Mkhwebane could not be suspended at this stage by Ramaphosa or anyone else because, in law, the impeachment inquiry had not started.

The constitution states the president may suspend the head of a chapter nine institution only “after the start of the proceedings of a committee of the national assembly for the removal of that person”. 

He also argued that Ramaphosa himself could not be involved in a suspension — even by sending her a letter asking for reasons why she should not be suspended — because, as the subject of previous or ongoing investigations by her office, he had a conflict of interest.

Arguments for the speaker of parliament and the president are expected to be heard on Thursday.