‘Mkhwebane should be made to pay personally for her utterly hopeless court application’

Advocate Busisiwe Mkhwebane.
Advocate Busisiwe Mkhwebane.


The DA is pushing for the Public Protector Busiswe Mkhwebane to be slapped with an unprecedented cost sanction in her ongoing application to interdict her suspension by President Cyril Ramaphosa and the impeachment process by Parliament.

If the DA succeeds, this would see Mkhwebane pay the costs from her own pocket – including the full legal fees of her lawyers.

READ: ‘All the heads of the arms of state are loaded against one lonesome woman – Mkhwebane,’ argues Dali Mpofu in interdict application

DA counsel Advocate Steven Budlender told the full bench of the Western Cape High Court on Thursday that Mkhwebane’s interdict application may be a case in which the court would want to ask if it were appropriate for the Public Protector’s legal team to be paid by public funds. He added that he was making the submission fully aware that there was no precedent for it.

“I’m not making a joking submission and I’m not making it for purposes of theatre. I’m making the point that public funds shouldn’t be used to bring an utterly hopeless application, utterly hopeless, where the only potential beneficiary of the litigation is Advocate Mkhwebane herself, not the office,” Budlender said.

I am making the submission that this is an improper use of public funds. And I am asking this court to direct that the legal fees incurred by Mkhwebane should be paid by her, and not by the office.

Sitting with Judges Mokgoatji Dolamo and Derek Wille, Judge Nathan Erasmus said the proposition may be within the court’s discretion even if there may not be an authority for it.

However, Erasmus questioned whether such a sanction should not only be considered from May 6 when the Constitutional Court dismissed Mkhwebane’s rescission application.

The application was a key ground on which Mkhwebane had initially sought to interdict Parliament from going ahead with her impeachment, which triggered a notice of suspension from Ramaphosa.

READ: Mkhwebane relies on 2007 ministerial handbook in an attempt to stop impeachment

In response to Erasmus, Budlender said he had his own misgivings about whether Mkhwebane was bona fide in launching the interdict application prior to May 6. He said after the Constitutional Court dismissed the rescission application, a bona fide litigant would have written to the other parties informing them that she was withdrawing the application against Parliament.

He said:

If we were there, I would not be asking for punitive costs because there would at least be some demonstration of bona fide intentions,” he said. “We have the opposite.

He added that Mkhwebane persisted with an entirely fresh application, which was “vexatious and abusive”. Her comments on Thursday that the most powerful arms of state were loaded her against were not even a legal argument.

“That is not even a political argument. That is sheer conjecture and speculation,” Budlender said.

The Abramjee text

Parliament’s lawyer, Advocate Andrew Breitenbach SC, said earlier that the objective facts in the Constitutional Court’s investigation into the controversial text sent by Ismail Abramjee to him showed that there would be very little prospect of the probe revealing that one or more of the justices of the apex court leaked the outcome of the rescission application.

This was a reference to a text message sent by Abramjee to Breitenbach in which he said he had it on “good authority” that the Constitutional Court had declined to hear Mkhwebane’s rescission application.

Mkhwebane’s counsel, Advocate Dali Mpofu used the message to ask the Western Cape High Court to postpone her interdict application against Parliament and the president to May 18 and 19.

Breitenbach said:

There were two material statements in that SMS. The first one was that by the time it was sent, on Sunday April 24, the Constitutional Court had declined to hear Mkhwebane’s rescission application. The second statement was that the decision would be made known sometime in the coming week, but no later than Friday April 29.

As the court knew, “on April 26, after the matter being postponed and Mkhwebane’s attorneys, acting with the consent of the other parties to the present matter, addressed a letter to the registrar of the Constitutional Court about the SMS, which culminated in a request for a response to an inquiry, whether the information contained in the request is true or not”, he said.

Breitenbach said the response from the registrar on April 29 noted that “the outcomes of the applications for direct access and rescission will be communicated to the parties and I emphasise when the court has finalised its processes and made its decision”.

“The only possible meaning of that communication is that on April 29, as at that time, the Constitutional Court had not yet made its decision. And it follows from that, that the first statement in the SMS is false.”

As things turned out, he said, the Constitutional Court also did not announce the decision by April 29 either.

“It did, say a week later on May 6 and it follows from that, that the second statement is false.”


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