Acting Public Protector explains the decision to withdraw Mkhwebane's court challenge

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Busisiwe Mkhwebane.
Busisiwe Mkhwebane.
Tebogo Letsie, Gallo Images, City Press
  • Busisiwe Mkhwebane's litigation strategy to enforce her rights affected the "liability and legal standing" of the Office of the Public Protector.
  • The office will no longer fund Mkhwebane's court challenge to the impeachment proceedings, but will fund her defence for the impeachment hearings.  
  • Acting Public Protector Kholeka Gcaleka said these steps were in the best interests of the institution.

Suspended Public Protector Busisiwe Mkhwebane's litigation strategy, in the name of the Office of the Public Protector, to "pursue and enforce" her personal rights and interests, "affected both the liability and legal standing of the Acting Public Protector and the PPSA in these matters".

This was how Acting Public Protector Kholeka Gcaleka on Thursday explained the decision to withdraw the PPSA's court challenge to Parliament's impeachment proceedings against Mkhwebane.  

The office will, however, fund Mkhwebane's challenge to her suspension, her defence in the coming impeachment proceedings, and the criminal case of perjury against her.

On 9 June, President Cyril Ramaphosa suspended Mkhwebane, who faces parliamentary impeachment proceedings.

The following day, the Western Cape High Court ruled against Mkhwebane in her application to interdict Ramaphosa from suspending her and Parliament continuing with her impeachment process.

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This application was pending Part B to her application, in which she asks the court to declare unconstitutional and invalid, the letter National Assembly Speaker Nosiviwe Mapisa-Nqakula sent to Ramaphosa to inform him that the impeachment process was underway, as well as Ramaphosa's steps to suspend her and the Section 194 process.

She has since approached the court to ask that it hear this application on an urgent basis, and amended the application to ask the court to declare her suspension unconstitutional, irrational and invalid.

On Monday, Mkhwebane also filed a notice of motion to seek leave to appeal the interdict ruling.

READ | Stalingrad has fallen: Acting Public Protector to withdraw Mkhwebane's court applications

On Wednesday, Gcaleka wrote to all the respondents in the matter, including Parliament, President Cyril Ramaphosa and the DA, as well as Mkhwebane, to inform them of her decision to withdraw the application for leave to appeal and the amended application to the Western Cape High Court.

On Thursday, the Office of the Public Protector issued a statement to clarify these matters.

"The leadership of the Public Protector South Africa (PPSA) has, in the best interests of the institution and the public it serves, taken a decision to withdraw the institution's participation in all pending litigation instituted by Adv. Busisiwe Mkhwebane in the name of the institution," reads the statement.

"However, due care has been taken not to impede or infringe Adv. Mkhwebane's rights or preparations in line with the critical safeguards to the impeachment process that have been highlighted by the Constitutional Court and the Western Cape High Court (WCHC)."

The PPSA will not fund Mkhwebane's appeal against the interdict application, the rescission application pending before the Constitutional Court; Part B of the application in the WCHC; and the defamation of character lawsuit, which is a private matter against the Democratic Alliance.

"The PPSA will fund Adv Mkhwebane's challenge of her suspension; her defence during the impeachment proceedings; and the perjury criminal case, within the PPSA's fiscal governance framework, considering that the Public Finance Management Act (PFMA) and Treasury Regulations require the PPSA Accounting Officer to ensure sufficient funding for any expenditure that the institution is required to cover and that any estimated legal costs are reasonable and budgeted for," reads the statement.

READ | Acting Public Protector assures ATM her office will probe Ramaphosa 'without undue delay'

The statement notes that Section 2A(7) of the Public Protector Act 23 of 1994 provides that, if the Public Protector is, for any reason, unable to perform her functions, the Deputy Public Protector shall perform such functions.

This provision confers all powers and functions of the Public Protector upon the Acting Public Protector, "including the responsibility to strategically direct litigation in the name of the PPSA within the best interests of the institution to fulfil its constitutional mandate and within the parameters of the law".

"In this regard, Adv. Mkhwebane's legal representatives should have obtained a power of attorney from the Acting Public Protector prior to filing an amended notice of motion in respect of Part B of the application before the WCHC on 17 June 2022 as well as a notice of application for leave to appeal the WCHC decision on Part A on 04 July 2022.

"The legal representatives' last authority to act on behalf of the PPSA was signed as far back as 2019 by the then CEO to challenge the parliamentary rules for the removal of office bearers of Institutions Supporting Constitutional Democracy."

The statement further reads:

The escalation of the matters beyond the scope of the instructions that they were originally appointed for, fiscal responsibilities in ensuing financial years as well as the litigation strategy in the name of the PPSA to pursue and enforce the rights and interests of Adv. Mkhwebane, affected both the liability and legal standing of the Acting Public Protector and the PPSA in these matters.

Gcaleka has been in regular contact with Mkhwebane about "her access to legal services, support and information affected by her suspension".

Gcaleka communicated these latest developments to Mkhwebane on Monday, and the PPSA CEO informed Mkhwebane's legal representatives.

"The Acting Public Protector reaffirms the PPSA's mandate to investigate all malfeasance in state affairs without any fear, favour or prejudice and will prioritise the best interests of the public, thereby living up to the institution's constitutional purpose of strengthening constitutional democracy.

"The PPSA will make no further comments on this matter."

READ | Mkhwebane's mounting legal bill: Taxpayers cough up R67 million to defend reports, halt impeachment

Meanwhile, Parliament has confirmed that it received Gcaleka's letter.

"Parliament has taken note of the Acting Public Protector's intentions on the matter and will await any further directions from the court," said parliamentary spokesperson Moloto Mothapo in a statement.

Advocate Kholeka Gcaleka
Advocate Kholeka Gcaleka
News24 PHOTO: Jan Gerber/News24

Parliament's impeachment hearings will commence on Monday.

Mkhwebane's court battle to avoid parliamentary scrutiny started in February 2020, and it had the effect that she would be allowed legal representation during the hearings.

Year after year, the Office of the Public Protector raised concerns about its budget shortfall to the Portfolio Committee on Justice and Correctional Services when budgets were discussed.

In May, the committee needed an additional R15 million over and above the just over R360 million budgeted for the 2022-2023 financial year to fund 22 critical positions.

However, it later emerged that, over the past two years, the office, which is funded by the public purse, spent R67 122 771 in legal fees – R52 million on defending her reports in court and R14.9 million on fighting the impeachment inquiry process against her.

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