Finish and klaar! High court says decision against Mkhwebane impeachment interdict is final

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Public Protector Busisiwe Mkhwebane listens during a briefing at Parliament. Photo: Mike Hutchings/Reuters
Public Protector Busisiwe Mkhwebane listens during a briefing at Parliament. Photo: Mike Hutchings/Reuters


Suspended Public Protector Busisiwe Mkhwebane’s last hope to hold on to her power evaporated when the Western Cape High Court dismissed her appeal to block the impeachment inquiry process against her.

Mkhwebane had also approached the Western Cape High Court to block President Cyril Ramaphosa from suspending her.

In her application, she argued that Ramaphosa had no power to proceed with the process to suspend her and that he was conflicted because she was considering several complaints against him.

She requested that the court get someone else to decide whether or not to suspend her, but not Ramaphosa.

But Western Cape Judge Nathan Erasmus dismissed her application with costs.

... a portion of the cost awarded to this matter will be awarded against advocate Mkhwebane in a personal capacity”, Erasmus ruled, adding that “each party shall be liable for their own costs except that the Public Protector shall be liable for the cost of the fifth respondent, including the cost of two counsel we employed up to and including May 6 2022.

The judgment comes a day after Ramaphosa announced that he was suspending Mkhwebane with immediate effect on Thursday.

READ: President Ramaphosa suspends Public Protector Mkhwebane with immediate effect

In a statement, the president said Mkhwebane’s deputy, Kholeka Gcaleka, would assume the responsibility of running the office of the Public Protector.

In his judgment of her appeal case, Judge Erasmus said Mkhwebane fell overwhelming short of any ordinary interdiction application.

He said public interest would not be served by the granting of an interdict relief under these peculiar circumstances.

“Further, an interim interdict will prevent the parliamentary respondents from performing their role of determining whether advocate Mkhwebane should be impeached or not. Even if we are wrong on the issue, it is the third respondent, the president, [that] elects to place advocate Mkhwebane under precautionary suspension.”

Erasmus gave Mkhwebane recourse by saying she was entitled to seeking a judicial review of the decision to suspend her from office.

“Advocate Mkhwebane will be granted the luxury of having a more than reasonable and fair opportunity to exonerate herself. We must emphasise that there exists a strong public interest in the continuation of the impeachment process. As a matter of logic, there’s serious prejudice against the separation of powers and the public interest in the event that the impeachment process is not concluded timeously and without inordinate delay.”

He said granting the interdict would cause a delay, and that the court’s refusal to do so overwhelmingly outweighs any harm that Mkhwebane may suffer as a result of the court’s decision.

Mkhwebane was seeking to prevent the president from deciding whether or not to suspend her.

Erasmus said:

For this relief, she advances that (a) the impeachment inquiry committee has not yet commenced with its proceedings; (b) accordingly, the third respondent has no power to proceed with the process to suspend her; (c) the third respondent is conflicted because the applicant is considering complaints against him; and (d) therefore somebody else must decide whether [or not to suspend] advocate Mkhwebane.

He said Mkhwebane took the position that she would suffer constitutionally because the process that will unfold against her will primarily be based on the report of an independent panel whose advances are unconstitutional.

“We hold the view that there are a number of alternative remedies available to advocate Mkhwebane other than to prevent the third respondent from rendering a decision in connection with possible suspension,” said Erasmus.

He said he had no doubt that there would be serious prejudice against the doctrine of separation of powers in the event that the impeachment inquiry committee is prevented from continuing with its work, considering the tension and judicial criticisms in the case against Mkhwebane.

Erasmus said all the complaints against the impeachment inquiry rules had been euthanised by the judgment of the Constitutional Court, which dealt comprehensively with the issue when it rejected her impeachment rescission bid in May.

READ: ‘Mkhwebane unlikely to escape axe’ – analysts

“In an attempt to resuscitate these objections and complaints, the applicant charted a so-called appeal against this decision, formulated as an application for decision. The process itself may undermine the legitimacy of the apex court. In our view, a strong signal needs to be sent that the judgments handed down by the apex court are final, need to be obeyed and respected, and cannot be circumvented through the device of a rescission application.”


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