'Lonesome' Busisiwe Mkhwebane claims society's most powerful conspiring against her

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Public Protector Busisiwe Mkhwebane
Public Protector Busisiwe Mkhwebane
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  • Busisiwe Mkhwebane is a "lonesome woman", facing a conspiracy by the most powerful actors in society, according to advocate Dali Mpofu SC.
  • Mkhwebane says there is prima facie evidence that the apex court's "integrity is compromised".
  • Her Stalingrad defence against Parliament's impeachment proceedings continued on Wednesday.

In court, her counsel painted Public Protector Busisiwe Mkhwebane as "a lonesome woman", facing a conspiracy by the mightiest in society. 

But, in an affidavit, Mkhwebane hit back, continuing her attack on the Constitutional Court by alleging there is "prima facie evidence" the apex court's "integrity is compromised".

Much of the conspiracy against her, and the so-called "prima facie evidence" against the Constitutional Court, centres around an SMS purporting to have inside knowledge of Mkhwebane's initial rescission application to the Constitutional Court.

On Wednesday, the latest episode of the legal drama of Mkhwebane's attempts to stop Parliament from impeaching her played out in the Western Cape High Court.

She asked the court for interdicts against Parliament continuing its impeachment process and President Cyril Ramaphosa from suspending her.

In February, the Constitutional Court effectively gave Parliament the green light to go ahead with the impeachment, provided that Mkhwebane was afforded an attorney.

Mkhwebane has subsequently approached the Constitutional Court unsuccessfully to ask it to rescind that order.

After Parliament's Section 194 Committee decided to proceed with the impeachment proceedings, and Ramaphosa asked her to provide reasons why she should not be suspended, she approached the Western Cape High Court for interdicts.

After the Constitutional Court turned down her rescission application, she approached the court to rescind that decision.

However, there is a second part to her proceedings in the Western Cape High Court – an application to declare Speaker Nosiviwe Mapisa-Nqakula's letter to Ramaphosa, which set her possible suspension in motion, unlawful.

Advocate Dali Mpofu SC, on behalf of Mkhwebane, said they would still ask the court for the interdicts, even if there wasn't the application to rescind the rescission decision, because of that second part.

The gist of Mpofu's arguments is that Parliament can't proceed with the impeachment while there are matters before the court, and Ramaphosa can't suspend her while he is conflicted because the Public Protector is investigating cases against him.

Asked by Judge Derek Wille how Mkhwebane's suspension would prevent the office of the Public Protector from continuing with the investigations into Ramaphosa, Mpofu said: "Nothing, but that is not the question."

READ | Are you saying Chief Justice Zondo is lying? - judge seeks clarity from Mpofu in Public Protector case

The matter was postponed on 26 April after it emerged that self-described legal analyst, Ismail Abramjee, sent an SMS to Parliament's counsel, advocate Andrew Breitenbach SC.

It read: "Hello Adv Breytenbach (sic). Re: The Public Protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the Public Protector's rescission application. The decision will be made known sometime this coming week but not later than Friday. I thought I'd just share this with you on a strictly confidential basis. Thanks."

On Wednesday, Mpofu described this SMS as "the biggest scandal to ever hit our courts".

He said that, on 28 April, Chief Justice Raymond Zondo gave an interview to the SABC in which he was asked on three occasions if the Constitutional Court had made a decision on the rescission application.  

"He gave three different answers," said Mpofu.

Judge Nathan Erasmus said Mpofu was, by implication, saying Zondo was lying.

"No. No, no, no, no," Mpofu responded.

"How else must I read it?" Erasmus said.

Mpofu said: "Well, I don't know, Justice Erasmus."

Mpofu said that Zondo didn't give a "clear and unambiguous answer" and that Mkhwebane, owing to her confusion, instructed her attorneys to write a letter to the Constitutional Court to gain clarity.

"What should concern you is a situation where there is a possibility – I wouldn't put it higher than that – there is a possibility that someone on the Constitutional Court leaked a judgment to influence you – this court."

READ | Mkhwebane hits out in full-throttled attack on ConCourt, charges there is grand plot against her

Mpofu went on to outline a grand conspiracy against Mkhwebane by what he calls a "network" of the most powerful in society.

"There is clearly, but clearly, and I say this with no fear of contradiction, because the Public Protector says it in her affidavit, that what seems to be happening here, if you cut out all the nice English words, is that she – one woman – is being, uh, in a coordinated fashion, victimised by the most powerful forces in this country ever to be imagined," said Mpofu.

Counting on his fingers, Mpofu listed the head of state, the speaker of Parliament, the chief justice and "the NGOs – I'm not even going there, and the media, who are represented collectively by Mr Abramjee".

Mpofu didn't explain how he came to the conclusion that Abramjee represents NGOs and the media.  

"You've got all the four estates of state imaginable – top, except for Mr Abramjee, the heads of those things – against a lonesome woman, who's just trying to do her job," he continued.

"How can a court of justice – not a court of law, a court of justice – not take that into account?" he asked.  

Mkhwebane filed an affidavit to apply to file another affidavit to introduce new evidence to the case.

Much of Mkhwebane's complaints in the affidavit revolves around the SMS and Parliament's refusal to halt the impeachment proceedings at her insistence.

She also went after the apex court.

Her affidavit reads:

At a prima facie level, the integrity of the highest court in the land is compromised, until the judges of the Constitutional Court, including the administration staff, have been cleared from any reasonable suspicion of criminality by a credible investigation.

"There will otherwise always be a lingering suspicion that one of the Constitutional Court judges may have leaked the information or that another functionary of the court did."

She referred to News24's reportage on Abramjee's SMS, saying that he "thankfully admitted his involvement".

"The only outstanding issue is his source(s)."

READ | Man behind SMS that stalled Mkhwebane's interdict battle with Ramaphosa denies 'judicial capture'

In News24's report, Abramjee insisted that his message to Breitenbach was based on media reports and "my own legal analysis", and not on any "inside information or knowledge" from the apex court. This is not mentioned in Mkhwebane's affidavit.

She insists that the SMS be investigated, and that it is also the basis for her application to rescind the rescission application.

She argues that her impeachment can't commence until this rescission matter is finalised.

Mkhwebane complains about a letter Mapisa-Nqakula sent to the Constitutional Court, which asks that the original rescission application be dealt with quickly.

"Reading between the lines, it is now abundantly clear that the chief justice considered and granted the special request and rejected my objection. This, too, should leave a bitter taste in the collective mouth of those who value fairness, accountability, transparency and the rules of natural justice."

She said it only "adds to the illegitimacy" of the rescission decision.

Mkhwebane also complains about the characterisation of her court battle over the past two years as employing Stalingrad tactics. 

She said it's an "anti-constitutional invention" meant to disparage "the hard-won rights enshrined in the post-apartheid Constitution".

Proceedings will continue before a full bench of Judges Erasmus, Mokgoatji Dolamo and Wille.

Counsel for the speaker of Parliament, Ramaphosa and the DA will offer their arguments.

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