ATM's attack on Acting Public Protector Gcaleka doesn't gel with court record, legislation

• The ATM attacked Acting Public Protector Kholeka Gcaleka after the Office of the Public Protector withdrew its funding from Busisiwe Mkhwebane's three-pronged court action to scupper the impeachment proceedings against her.
• The ATM argues only the suspended Mkhwebane is the Public Protector and Gcaleka wasn't within her rights to withdraw the applications.
• The court record and legislation suggests otherwise.

A staunch supporter of suspended Public Protector Busisiwe Mkhwebane, the ATM, launched an attack on Acting Public Protector Kholeka Gcaleka after she closed the office's money taps for Mkhwebane's three-pronged court bid to scupper Parliament's impeachment proceedings against her.

Its attacks are, however, not backed up by the court record and relevant legislation.

Mkhwebane applied to the Constitutional Court to rescind its order which effectively gave the green light for the impeachment proceedings to proceed. After the apex court decided not to hear the application, she asked it to rescind this decision.

Last month, on the day after President Cyril Ramaphosa suspended her, the Western Cape High Court dismissed Mkhwebane's application to interdict Ramaphosa from suspending her, and for Parliament to continue with the impeachment.

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 the impeachment process was underway, as well as Ramaphosa's steps to suspend her and the section 194 process.

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

She has since approached the court to ask it to 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.

On Wednesday, Gcaleka wrote to all the respondents in the matter, including Parliament, 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.

The following day, 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 advocate Busisiwe Mkhwebane in the name of the institution," read the statement.

The PPSA will not fund Mkhwebane's appeal against the interdict application, the rescission application pending before the Constitutional Court and Part B of the application to the Western Cape High Court. Furthermore, it will also not fund a defamation of character lawsuit, which is a private matter Mkhwebane brought against the DA.

READ | As Mkhwebane blew millions on futile cases, her cash-strapped office begged for out-of-court deals

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

The decision to withdraw the court matters to halt the impeachment proceedings - which has been dubbed a Stalingrad defence - drew the ire of the ATM, which claims Gcaleka "plunged the institution into another crisis of illegality".

"The purported and celebrated 'withdrawal' by 'Public Protector South Africa' or 'PPSA' from the present application is legal nonsense because 'PPSA' was never a party to these proceedings," its statement read.

"There is no such thing as PPSA in the Constitution or even in the Public Protector Act. Advocate Mkhwebane never purported to be the PPSA. On that alone, the registrar of the court should reject Gcaleka's letter [sic].

ATM president Vuyolwethu Zungula. (Supplied)

"The applicant has always been and remains the Public Protector Of South Africa namely Adv Mkhwebane. There is only one Public Protector of South Africa and she has not been removed from her office. There is a big difference between a suspension and a removal. Otherwise, what is the purpose of the forthcoming parliamentary process starting next Monday? [sic]"

The court record would suggest otherwise.

In the judgment handed down on 10 June to dismiss Mkhwebane's interdict applications, the applicant is listed as "The Public Protector of SA".

Paragraph 77 of the judgment further states:

The Public Protector Act's preamble states the Constitution provides for "the establishment of the Office of the Public Protector".

It lists the Public Protector as a "member of the Office of the Public Protector".

Section 4 of the act reads: "Whenever the Public Protector is, for any reason, unable to perform the functions of his or her office, or while the appointment to the office of the Public Protector is pending, the most senior Deputy Public Protector available shall perform such functions."

Section 5 states: "The office of the Public Protector shall be a juristic person."

Parliament's impeachment hearings against Mkhwebane is set to commence on Monday.