The clear winner of the Legal Newsmaker of the Year award must surely be suspended public protector Busisiwe Mkhwebane, who made legal history by being the first person to apply to apply to rescind an order refusing to rescind an order in the Constitutional Court.
A dubious honour to be sure, but Mkhwebane’s journey through South Africa's courts this year show that, if nothing else, she is tenacious.
In an affidavit to the high court, Mkhwebane hit out at “chattering classes” who would accuse her of “Stalingrad” tactics. She said the Stalingrad term was “a new anti-constitutional invention in the South African legal lexicon” intended to disparage and prevent people from “exercising the hard-won rights enshrined in the post-apartheid constitution”.
“I hope to get an opportunity one day to expose and correct this injustice,” she said.
We have yet to have this injustice exposed and corrected. Instead, in a surprise to no-one, the apex court sent her packing — on both rescission applications — calling her second application an “abuse of court” and ordering that she pay costs in her personal capacity. Her reaction was that this order was “the biggest abuse of women”.
“I mean, where would I get that money?” she asked, with no hint of irony.
Mkhwebane was on the ropes from February when the Constitutional Court gave judgment on the impeachment rules applicable to the heads of Chapter 9 institutions. The apex court found the rules were unconstitutional in one respect: they did not allow legal practitioners to participate at the committee stage of an impeachment process.
But more importantly — because the committee stage had not yet been reached — the judgment cleared the way for the process to get under way in earnest.
Faced with a judgment that could not be clearer from the final court of appeal, Mkhwebane took a leaf out of former president Jacob Zuma’s book and applied to the Constitutional Court to rescind the judgment.
But if Zuma’s application was a long shot, Mkhwebane’s was even longer. “Utterly hopeless” was the description used by the DA’s counsel, Steven Budlender SC, adding, “and I use the word carefully and deliberately”.
Yet the Constitutional Court took two months to decide her May application. In the meantime, Mkhwebane went to the high court seeking to halt the impending impeachment process in parliament and to prevent her suspension via an interim interdict pending the rescission application at the Constitutional Court.
In a way, this was the second time she was arguing the same case. She had, in 2020, already tried to interdict an impeachment inquiry pending her constitutional challenge to the rules. She had already failed once. The chances of her succeeding on the shaky ground of a pending rescission application were slim. She was not deterred.
Staff in her office gave evidence with allegations that portrayed Mkhwebane as pursuing a political agenda and abusing state resources to do so. Strenuous cross-examination by Mpofu did not seem to make much of a dent.
So far, all was par for the course in South Africa’s litigious constitutional democracy. Then, on the eve of the high court hearing in April, counsel for the National Assembly speaker, Andrew Breitenbach SC, made a startling disclosure: he had received an SMS that said: “I have it on very good authority that the ConCourt has declined to hear the public protector’s rescission application. The decision will be made known some time this coming week but not later than Friday. I said I’d share this with you on a strictly confidential basis.”
The hearing was postponed and the matter investigated.
It later emerged the sender was Ismail Abramjee, a Laudium pensioner and “legal analyst and consultant”, according to his Twitter bio. He immediately denied he had been leaked the information by anyone at the Constitutional Court. He said his prediction was based on media reports and his own analysis.
It did not help that he and Constitutional Court justice Jody Kollapen were members of a Laudium community organisation, the Pretoria Legacy Foundation, and the organisation had recently held an event to honour Kollapen’s appointment to the ConCourt. Gauteng judge president Dunstan Mlambo and his Pretoria deputy Aubrey Ledwaba, Kollapen's colleagues at the Pretoria court, were both there.
At the time, Mlambo was acting at the ConCourt. It was a perfect confluence for conspiracy theorists. Pictures of Abramjee, Kollapen and Mlambo at the event were circulated on social media with speculative half-truths and “join-the-dots” commentary implying the Constitutional Court was “captured”.
The odds that the Constitutional Court would dismiss the rescission application were a million to one. In the end it did not hand down the judgment within the week as Abramjee predicted.
A subsequent investigation by retired president of the Supreme Court of Appeal Lex Mpati found there was no evidence that either Mlambo or Kollapen were a source of confidential Constitutional Court information.
The apex court also took an uncompromising stance to further questions from Mkhwebane. When she wrote a long letter to the court saying its reply to the April letter (from the parties when Abramjee’s text was first revealed) raised more questions than answers, then proceeded to list further questions, the court responded with a single line: “Please be advised that the court reiterates its response dated April 29 and in that regard will not engage in correspondence of this nature with a litigant.”
Mkhwebane was undeterred: On May 10 she applied to rescind the rescission order. She had also, on May 4, launched her own investigation, using her powers of subpoena to obtain telephone records, revealing Kollapen had been in telephone contact with Abramjee on a number of occasions and Mlambo once.
When the case returned to the high court, Mkhwebane’s counsel Dali Mpofu SC, described her as “being victimised by the most powerful forces in this country ever to be imagined”.
Mkhwebane was “just trying to do her job”.
While the president and the speaker adopted a muted stance — sticking to the facts and law — the DA came back hard. Budlender said Mkhwebane’s first rescission application to the ConCourt was “was utterly hopeless” and her second “beyond hopeless”.
He was right. It was dismissed with personal costs as an “abuse” by the apex court on August 24.
On June 10, three judges of the Western Cape High Court dismissed her case. The day before, she was suspended by President Cyril Ramaphosa.
But in between the hearing and the judgment, the Phala Phala scandal broke. On June 8 Mkhwebane publicly confirmed that African Transformation Movement MP Vuyo Zungula had laid a complaint with the public protector’s office and her office was investigating.
Mkhwebane immediately returned to court to challenge her suspension and again tried to put the brakes on impeachment proceedings against her.
Nevertheless, the impeachment process began on July 11. Staff in her office gave evidence with allegations that portrayed Mkhwebane as pursuing a political agenda and abusing state resources to do so. Strenuous cross-examination by Mpofu did not seem to make much of a dent. However, Mkhwebane herself is yet to give evidence.
It was because of Phala Phala that Mkhwebane scored her only real legal victory in 2022: the Western Cape High Court set aside her suspension, saying Ramaphosa’s decision was “tainted by bias of a disqualifying kind and perhaps an improper motive”.
Within hours of the judgment’s delivery — on a Friday — the DA wrote to Mkhwebane’s lawyers to remind them the high court judgment was of no force until it was confirmed by the Constitutional Court.
A weekend of high drama followed. Mkhwebane’s attorneys wrote back rejecting the DA’s contention “with the contempt it deserves”. She made arrangements to return to work the next day while the DA — leaving nothing to chance — filed an application for leave to appeal with the Constitutional Court on Friday night. Acting public protector Kholeka Gcaleka politely warned Mkhwebane that she would be refused entry.
Mkhwebane went back to court. She asked for an order in terms of section 18 of the Superior Courts Act to execute an order despite a pending appeal. She failed. On October 11 the court said there was no order to execute — because the order had “no force” until it was confirmed. Though the ConCourt had given a date for argument on her suspension to be heard on November 24, she applied to appeal that judgment. She failed.
On November 24, the Constitutional Court heard argument on whether it should confirm the high court’s decision that Ramaphosa’s suspension was unlawful. Its judgment is pending.
As 2023 begins, impeachment proceedings are due to continue in parliament. Her term of office is due to expire in October. There has been no word from the public protector’s office on the investigation she was anxious to get back to — the Phala Phala investigation.
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