Public Protector Busisiwe Mkhwebane was confident that she had the upper hand in her high court application to interdict National Assembly Speaker Thandi Modise from proceeding with the motion to remove her from office – but it was not to be.
Judge Vincent Saldanha, of the Western Cape High Court, said on Friday that Mkhwebane had failed to meet any of the requirements for the interim interdict, removing any doubts that the process to impeach Mkhwebane could be temporarily halted pending finalisation of the second part of her court application dealing with the lawfulness of the rules enabling Parliament to look into her fitness to hold office.
“Even if she had done so, I would have exercised my discretion in refusing such relief given the severity of the charges that had been preferred against her and which have been based on trenchant findings by none higher than the Constitutional Court with regard to her conduct, her honesty and her methodology of investigation,” said Saldanha.
Although Mkhwebane had consistently argued that adverse comments by the judiciary in some of the key cases that she had lost could not be the trigger for the process to oust her, the court found that charges based on such remarks were too serious to ignore.
The DA, which applied for the motion against Mkhwebane, had proclaimed that she failed to act independently in the Absa/Bankorp lifeboat investigation, did not properly interrogate damning evidence against powerful politicians in the Vrede dairy farm matter and played into the ANC’s factional politics by investigating the so-called SA Revenue Service rogue unit case against Public Enterprises Minister Pravin Gordhan and others.
Several court judgments against Mkhwebane also bolstered the DA’s case.
The included the Constitutional Court judges remarking that the Public Protector had acted dishonestly during the review case of the Absa lifeboat investigation – although a minority judgment by Chief Justice Mogoeng Mogoeng disagreed.
Saldanha said: “A process for the impeachment of an office bearer of a Chapter 9 institution is not lightly taken and is a serious mechanism for the accountability of the office bearers of Chapter 9 institutions under the Constitution.
“A court should not lightly interfere with such processes unless an applicant has demonstrated exceptional circumstances which in my view the applicant has failed to do.”
In the application to interdict Parliament, Mkhwebane cited issues such as proper consultation, adequacy, a fair hearing and the independence of a panel set to be appointed to assess the motion against her.
Earlier this year, Modise gave the go-ahead for Parliament to start the process to remove Mkhwebane from office, prompting the Public Protector to fire off an angry letter stating that the rules adopted by Parliament in December last year were “unconstitutional” and “breach the rights of heads of Chapter 9 institutions”.
Mkhwebane argued that the process was unfair as she had not been given an opportunity to state her side of the story.
However, Modise also insisted that the process was neither unconstitutional nor unlawful.
Modise also told the court that she was satisfied with the process that Parliament had followed to initiate an inquiry into Mkhwebane’s suitability.
She said it was still early for Mkhwebane to be called to give her side of the story.
Saldanha also rejected as invalid Mkhwebane’s claims that because her office had investigated some members of the Cabinet, including President Cyril Ramaphosa, and these parties could not be trusted to evaluate her work objectively in their roles as MPs.
Similarly, the court did not agree with the plea that some members of the legislature, mostly in the DA, were also conflicted as they had publicly commented on her competence and integrity.
The judge said that despite Mkhwebane’s criticism of both Modise and the DA, the court was not persuaded that any of the parties acted in bad faith.